People v. Gant

• Decision Date: 27 June 2005
• Docket Number: 05-0196
• Citation: 802 N.Y.S.2d 839,2005 NY Slip Op 25307,9 Misc.3d 611
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. CHARLES GANT, Defendant.
• Court: New York District Court

9 Misc.3d 611

802 N.Y.S.2d 839

2005 NY Slip Op 25307

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. CHARLES GANT, Defendant.

05-0196

County Court, Westchester County.

June 27, 2005.

Edward D. Wilford, New York City, for defendant.

Jeanine Ferris Pirro, District Attorney, White Plains, for plaintiff.

OPINION OF THE COURT

RORY J. BELLANTONI, J.

In disposing of defendant's motion, the court has considered the following papers: notice of motion and affirmation of Edward D. Wilford, Esq., counsel for defendant; affirmation in opposition of Assistant District Attorney Edward D. Saslaw, and memorandum of law; and the stenographic minutes of the grand jury of the State of New York from September 23, 2004.

By indictment number 05-0196, defendant Charles Gant was indicted for the crime of criminal possession of a controlled substance in the first degree (Penal Law § 220.21); and, by indictment number 04-0959, defendant was charged with one count of criminal possession of a controlled substance in the first degree (Penal Law § 220.21), and one count of conspiracy in the second degree (Penal Law § 105.15). By order dated March 25, 2005, the Honorable Sam D.Walker, J.C.C., consolidated both indictments. By notice of motion dated May 1, 2005, defendant moved for various relief. This court shall address defendant's requests seriatim:

1. Motion to Inspect and Dismiss or Reduce Indictment; Motion to Dismiss Defective Grand Jury Proceedings

Defendant moves this court to inspect the grand jury minutes and, upon such inspection, seeks the dismissal or reduction of counts charged in the instant indictment, challenging the legal sufficiency of the evidence presented and the propriety of the legal instructions provided.

Preliminarily, this court grants defendant's motion insofar as it seeks an in camera inspection of the grand jury minutes, yet denies same to the extent that it seeks disclosure of those minutes to defendant, as the determination of the instant motion does not require such disclosure. (Matter of Brown v LaTorella, 229 AD2d 391 [2d Dept 1996]; Matter of Brown v Rotker, 215 AD2d 378 [2d Dept 1995].)

Following an in camera review of the grand jury minutes, this court finds that the evidence presented before the grand jury was legally sufficient to support the crimes charged in the instant indictment. In considering a motion to dismiss an indictment pursuant to CPL 210.20 (1) (b), the relevant inquiry concerns the legal sufficiency of the evidence, not the weight or adequacy of the proof presented. (See People v Galatro, 84 NY2d 160 [1994].) Legally sufficient evidence has been defined as competent evidence which, if accepted as true, would establish the defendant's commission of each and every element of each offense charged. (CPL 70.10 [1]; see also People v Jensen, 86 NY2d 248 [1995]; People v Jennings, 69 NY2d 103 [1986].) In the context of grand jury procedure, this has been held to mean proof of a prima facie case, not proof beyond a reasonable doubt. (See People v Gordon, 88 NY2d 92 [1996]; People v Mikuszewski, 73 NY2d 407 [1989].) Moreover, the court, in evaluating the sufficiency of the evidence, must determine whether the evidence, when viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury. (See People v Swamp, 84 NY2d 725 [1995]; People v Pelchat, 62 NY2d 97 [1984].)

Based upon an in camera review of the grand jury minutes, this court finds that the competent evidence presented, when viewed in the light most favorable to the People, if unexplained and uncontradicted, was legally sufficient to establish defendant's commission of the elements of each charged offense.

To the extent defendant moves this court to dismiss the instant indictment due to the alleged inadequacy of legal instructions provided to the grand jurors during the presentation of this matter, the court recognizes that a grand jury need not be instructed with the same degree of precision that is required when the court instructs a petit jury. (People v Calbud, Inc., 49 NY2d 389 [1980]; People v Valles, 62 NY2d 36 [1984].) Accordingly, this court finds that the legal instructions provided to the grand jurors by the assistant district attorney were adequate and complete.

To the extent that defendant's application can be understood to seek dismissal of the instant indictment upon allegations concerning defects in the grand jury proceedings, this court finds that the grand jury proceedings were conducted in conformity with the requirements of CPL article 190. Furthermore, the court finds that defendant's failure to present any factual allegations concerning the specific bases of the present application is insufficient to overcome the presumption of regularity that attaches to grand jury proceedings. (People v Dominique, 90 NY2d 880 [1997]; Virag v Hynes, 54 NY2d 437 [1981].)

Based upon the foregoing, and this court's review of the grand jury minutes, defendant's application seeking the dismissal or reduction of the counts charged in the instant indictment is denied.

2. Motion to Suppress Evidence Obtained as a Result of Eavesdropping Warrants

Defendant has moved to suppress the "information" obtained as a result of the eavesdropping warrants obtained by law enforcement in this matter, asserting that they are fruit of the poisonous tree, citing Wong Sun v United States (371 US 471 [1963]) (affirmation of Edward D. Wilford, Esq. at 12). More specifically, defendant asserts, inter alia, that (i) the warrants were not issued upon probable cause; (ii) the warrants did not meet the "other investigative procedures" requirement of CPL article 700; (iii) with respect to the confidential informants utilized by law enforcement to establish probable cause in connection with the search warrant applications at issue, the People failed to demonstrate that said confidential informants were reliable and had a basis of knowledge; (iv) the information contained in the affidavits in support of the issuance of the warrants was stale; (v) law enforcement did not conduct the eavesdropping in a manner to minimize the interception of communications, and therefore the warrants at issue were not issued in conformity with CPL 700.30 (7); (vi) pursuant to Franks v Delaware (438 US 154 [1978]) and People v Alfinito (16 NY2d 181 [1965]), a hearing is required to challenge law enforcement's statements contained in the warrant applications; and (vii) the warrant applications are improper "spin-offs," that is, when law enforcement shifted its focus to Charles Gant from the persons originally identified in the initial warrants signed by the various justices, there was no attempt to conduct an independent investigation to determine the necessity of eavesdropping warrants with respect to defendant.

The People have opposed defendant's motion asserting that the court's review of the warrant applications will reveal that each application demonstrated both the necessity for an eavesdropping warrant and the probable cause to believe a wiretap would intercept communications concerning the crimes indicated. The People further assert that there is no merit to defendant's claims that the warrant applications were inadequate in describing law enforcement's efforts to utilize other investigative techniques, and set forth reasons why other investigative techniques would have failed (People's mem of law, point II).

This court has reviewed the warrant applications at issue and has considered defendant's arguments with respect thereto, mindful that a court issuing a warrant is vested with considerable discretion in determining the sufficiency of the application. (People v Tambe, 71 NY2d 492 [1988]; People v Baker, 174 AD2d 815 [3d Dept 1991]; People v Ianniello, 156 AD2d 469 [2d Dept 1989].) At the outset, this court finds that the warrants at issue were based upon probable cause. In addition, each warrant detailed the necessity for its issuance, and the reasons why normal investigative procedures were unlikely to succeed. Accordingly, defendant's assertion that the warrants did not issue upon probable cause, and that the warrants did not meet the "other investigative procedures" requirement of CPL article 700 are without merit. (People v Fonville, 247 AD2d 115 [4th Dept 1988]; CPL 700.10 [1]; 700.15 [2], [3], [4].)

Turning to defendant's arguments concerning law enforcement's use of confidential informants in this matter, it is well established that information supplied by a confidential informant may be sufficient to establish probable cause for a search warrant where it is shown that the informant has a basis of knowledge and the informant is reliable. (Aguilar v Texas, 378 US 108 [1964]; People v Rodriguez, 52 NY2d 483 [1981]; People v Alston, 1 AD3d 627 [3d Dept 2003].) With respect to defendant's assertions concerning the reliability of confidential informants referenced in the warrant applications, this court finds that (i) confidential informants were referenced in the warrant applications to demonstrate that other investigative techniques were not likely to succeed, and (ii) to the extent that the People relied upon confidential informants to establish probable cause for the issuance of the warrants, the People met their burden in establishing the reliability of the confidential informant in each warrant application. Accordingly, defendant has failed to meet his burden to demonstrate that a hearing is necessary concerning the reliability of the confidential informants utilized in this case. (Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]; People v Bigelow, 66 NY2d 417 [1985]; People v Johnson, 66 NY2d 398 [1985]; People v Landy, 59 NY2d 369, 375 [1983].)

This court also rejects defendant's contention that the affidavits were based upon stale evidence. Probable cause is not determined simply by counting the number of days between the occurrence of the events...