People v. Duval
| Decision Date | 26 November 2019 |
| Docket Number | Index 2166/12,9262 |
| Parties | The PEOPLE of The State of New York, Respondent, v. Drury DUVAL, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
179 A.D.3d 62
114 N.Y.S.3d 310
The PEOPLE of The State of New York, Respondent,
v.
Drury DUVAL, Defendant-Appellant.
9262
Index 2166/12
Supreme Court, Appellate Division, First Department, New York.
ENTERED: NOVEMBER 26, 2019
Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Waleska Suero Garcia and Peter D. Coddington of counsel), for respondent.
John W. Sweeny, Jr., J.P., Judith J. Gische, Peter Tom, Ellen Gesmer, Anil C. Singh, JJ.
TOM, J.
Since the warrant in this case adequately described the location to be searched, we uphold the issuance and execution of the warrant and the subsequent search and seizure of the contraband. The warrant was supported in part by testimony and evidence that is available for our in camera review but that is sealed, and, for this reason, will only partially be itemized herein.
On June 29, 2012, at about 6:30 p.m., Police Officer John Toscano executed a search warrant on a private residence on East 211th Street in the Bronx. The items seized included a .45 caliber semi-automatic handgun, seven boxes of .45 caliber and .357 caliber live rounds, a stun gun, two air pistols, a carbon dioxide cartridge canister, two machetes, and marijuana that were taken from, variously, defendant's closet and a nightstand drawer, and fireworks and explosives taken from the living room. Defendant was arrested simultaneously with the seizure of the contraband.
Defendant was indicted for criminal possession of a weapon in the second degree and lesser related counts. Defendant moved to controvert the search warrant and suppress the physical evidence on the basis, inter alia, that the warrant failed to specify which unit in the residence was the target of the warrant or the items that police expected to seize. The People produced for in camera review evidence that had been submitted in support of the warrant. Bronx County Supreme Court (Steven Barrett, J.) found that the warrant satisfied the particularity requirement of the Fourth Amendment to the United States Constitution and article I, § 12 of the New York Constitution in that it sufficiently identified the premises to be searched and the property to be seized. The court thereupon denied this branch of the suppression motion.
Defendant subsequently moved to reargue on the basis that the court had not decided his request for disclosure of the materials submitted in support of the search warrant application. After reviewing the supporting materials in camera, the court found that on the basis of sworn testimony provided by an informant and the prosecutor's averments, disclosure of the informant's identity and statements
would present a risk to the informant's life and would jeopardize future investigations, and that redaction of the materials was not feasible if the informant's identity were to be protected. On this basis, reargument was denied. Defendant subsequently pleaded guilty to criminal possession of a weapon in the third degree, and was sentenced, as a second felony offender, to a term of two to four years.
On appeal, defendant challenges the warrant on the basis that it identified the building as whole, rather than any individual unit, as the target of the search. The face of the warrant identified the premises to be searched as "[XXXX] EAST 211TH STREET, A PRIVATE RESIDENCE CLEARLY MARKED [XXXX]." The detective's affidavit in support described in detail how the residence came to be identified as the location where weapons would be found, and why police could conclude from information about its internal arrangements that it was the residence of a single family. Testimony by the detective and the confidential informant provided additional specific details.
Defendant, however, argues that reversal and suppression are required because the warrant on its face did not give adequate constitutional notice of which particular unit in the house would be searched. Defendant further argues that the motion court was not authorized to rely solely on materials not incorporated into the warrant to uphold its validity, pursuant to Groh v. Ramirez , 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), a position adopted by the dissent. However, since that position does not comport with the facts of this case, Groh does not govern our analysis of either the order denying suppression or the facial validity of the warrant itself.
Groh was a Bivens ( Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 [1971] ) civil case brought under 42 USC 1983 wherein a person against whom a warrant was executed sued federal agent who prepared and executed the warrant on the basis that it was insufficiently particular, and the agent sought qualified immunity. As related by the Supreme Court, where the face of the warrant required
itemization of the items to be seized, the agent simply described the house. In effect, no items were identified on the face of the warrant, which failed to meet the particularity requirement for a search warrant. Thus, the warrant was constitutionally defective, a defect that could not be cured by information available to the warrant judge that had not been incorporated into the warrant by reference or otherwise. However, the Supreme Court saliently, differentiated that context from one where items were only partially identified, or a few might have been misdescribed, with an adequate identification of other items to be seized. The Supreme Court characterized such omissions as possibly presenting a "mere technical mistake" ( Groh, 540 U.S. at 558, 124 S.Ct. 1284 ) that did not deprive the target of the warrant adequate notice, in that case, of the items to be seized. Hence, Groh should not be construed to categorically invalidate a warrant that provides identifying details sufficient for constitutionally necessary notice purposes but nevertheless omits some details.
In this respect, defendant and the dissent overinterpret the application of Groh to these facts. On its face, the warrant was sufficiently specific as to the place to be searched, because it stated the address and described the premises as a "private residence," which to all appearances it was. The testimony describing the execution of the warrant as well as the nature of defendant's residence therein makes clear that the house was defendant's
family home regardless of any reference in city tax records indicating different legal units. This was sufficient to authorize a search of the entire house.
Since the warrant herein was sufficiently particularized and not overbroad on its face, as was the case in Groh, the court could refute defendant's claim with additional materials in support of the warrant application, including the in camera materials. The record makes it amply clear that the house was used as a residence for defendant's family, consisting of defendant, his mother, and a young child. Defendant's mother was identified in city records as the sole owner of the house, and her affidavit reflected that she lived on the ground floor and defendant's bedroom was on the third floor. The house could be entered either through a front door or by a kitchen entrance off of the driveway, but these were not separate entrances to separate units. The side entrance entered into the kitchen, and the kitchen led directly into the living room. A bank check in defendant's name was found in the downstairs kitchen.
The dissent relies on allegations in defense counsel's affirmation to argue for a more differentiated internal living
structure. However, since an attorney's affirmation is not evidence, the endeavor is unavailing. The dissent also relies on the affidavit submitted by defendant's mother to counter the position of the People that the house was a private family residence. In view of the obvious likelihood of a compelling personal interest motivating the mother, we also decline to accept this as reliable evidence in the effort to controvert the warrant and the additional material in the record.
The only indication that the house legally could have been occupied as separate units was in the extrinsic materials supplied by defendant in moving to controvert the warrant, consisting of public records showing that the house contained three units. However, the fact that city records reflected that the house could be occupied as three units for tax or zoning purposes does not require a conclusion that it was. There likely are numerous legal two- or three-family residential houses that remain occupied by single families. The classifications of these houses relate to tax or land use matters that have no necessary bearing on the facial validity of a warrant. In view of the evidence available to police and the warrant court and the notice provided by the warrant itself, it is hard to see how the dissent construes this understanding of city records to be a concession that the warrant was...
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People v. Duval
...to 2 to 4 years’ imprisonment.The Appellate Division affirmed the judgment, upholding the denial of Mr. Duval's suppression motion (179 A.D.3d 62, 114 N.Y.S.3d 310 [1st Dept. 2019] ). The Appellate Division, with two Justices dissenting, held that the warrant was sufficiently particularized......