People v. Nettles
| Decision Date | 26 August 2020 |
| Docket Number | 2016–10548,Ind. No. 7641/14 |
| Citation | 186 A.D.3d 861,128 N.Y.S.3d 610 |
| Parties | The PEOPLE, etc., Respondent, v. Devon NETTLES, Appellant. |
| Court | New York Supreme Court — Appellate Division |
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (William M. Harrington, J.), rendered September 8, 2016, convicting him of criminal possession of a firearm, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Betty J. Williams, J.) of the defendant's motion to controvert a search warrant and for a Darden hearing (see People v. Darden , 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 ). By decision and order dated May 15, 2019, this Court remitted the matter to the Supreme Court, Kings County, for an in camera hearing and inquiry in accordance with the guidelines set forth in People v. Darden , and thereafter for the submission of a report by the Supreme Court on its determination. The appeal was held in abeyance pending receipt of a report from the Supreme Court. The Supreme Court has filed its report.
ORDERED that the judgment is reversed, on the facts, the defendant's motion to controvert the search warrant is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.
On September 4, 2014, a detective with the New York City Police Department obtained a "no knock" search warrant, which authorized a search of an apartment in a 21–story building in Brooklyn. In his affidavit in support of the search warrant, the detective averred that, based upon information from a confidential informant (hereinafter CI) who made two controlled drug buys at the location, there was reasonable cause to believe that there would be evidence of the sale and possession of cocaine, and conspiracy to commit those crimes, including, inter alia, cocaine, vials, caps, glassine envelopes, small ziplock bags, currency, and financial records.
At 6:20 a.m. on September 11, 2014, a team of police officers executed the search warrant. No contraband was found except for a single ziplock bag containing narcotics and some pipes with residue. A semi-automatic handgun was found hidden in the defendant's bedroom closet. The defendant was charged with and ultimately convicted of criminal possession of a firearm, a class E felony. The defendant's appeal from the judgment brings up for review the defendant's motion to controvert the search warrant and for a Darden hearing (see People v. Darden , 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 ).
In our decision and order dated May 15, 2019, we determined that "the detective's on-the-scene observations during the two controlled drug buys fell short of probable cause without the information provided to him by the CI" ( People v. Nettles, 172 A.D.3d 1102, 1103–1104, 100 N.Y.S.3d 325 ). We explained that, "[a]lthough the detective observed the CI enter and exit the building, the detective was unable to confirm that the CI had actually purchased the narcotics from the subject apartment" ( id. at 1104, 100 N.Y.S.3d 325 ; see generally People v. Burks , 134 A.D.2d 604, 606, 521 N.Y.S.2d 718 ). Given our determination, we held the appeal in abeyance, and remitted the matter to the Supreme Court, Kings County, inter alia, to conduct an in camera inquiry pursuant to People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49.
Upon remittitur, the Darden hearing was held, wherein testimony was taken from a person identified as the CI, as well as the police detective who had obtained the search warrant. In accordance with the Darden procedure, the defendant was not allowed to be present for the hearing, and the hearing transcript was sealed. The defendant was permitted to submit written questions.
In its report, the Supreme Court determined that the testimony of the alleged CI and the detective "clearly established that the individual who was present at the Darden hearing was, in fact, the CI that provided the information that provided probable cause for the search warrant." We reverse.
The Darden rule is necessary to insure "that the confidential informant both exists and gave the police information sufficient to establish probable cause, while protecting the informant's identity" ( People v. Edwards , 95 N.Y.2d 486, 494, 719 N.Y.S.2d 202, 741 N.E.2d 876 ; see People v. Adrion , 82 N.Y.2d 628, 635, 606 N.Y.S.2d 893, 627 N.E.2d 973 ). The rule, which "gives clear guidance to lower courts and guarantees that the protections of the Fourth Amendment have not been circumvented" ( People v. Edwards , 95 N.Y.2d at 494, 719 N.Y.S.2d 202, 741 N.E.2d 876 [internal quotation marks omitted] ), "is necessary to properly test the officer's credibility" ( id. at 495, 719 N.Y.S.2d 202, 741 N.E.2d 876 ), and is "designed to protect against the contingency, of legitimate concern to a defendant, that the informer might have been wholly imaginary and the communication from him [or her] entirely fabricated" ( People v. Darden , 34 N.Y.2d at 182, 356 N.Y.S.2d 582, 313 N.E.2d 49 ).
The credibility determinations of a hearing court following a Darden hearing are accorded deference on appeal, and will not be disturbed unless they are not supported by the record (see People v. Binion , 100 A.D.3d 1514, 1515, 954 N.Y.S.2d 369 ; see also People v. Plass , 160 A.D.3d 771, 772–773, 74 N.Y.S.3d 587 ; People v. Kelly , 131 A.D.3d 484, 485, 15 N.Y.S.3d 391 ).
Here, the Supreme Court's credibility determinations are not supported by the record. As will be shown, there were substantial material discrepancies between the detective's affidavit in support of the search warrant, and the testimonies of the alleged CI and the detective at the Darden hearing pertaining to (1) the CI's track record of reliability, (2) the prior relationship between the detective and the CI, and (3) the facts and circumstances of the alleged controlled buy or buys at the subject apartment. Consequently, we find that the People failed to meet their burden at the Darden hearing.
In his search warrant affidavit, the detective averred that he spoke "to a confidential informant who is registered with the NYPD ... [who] has a proven history of reliability based on his/her having provided reliable information on one occasion" (emphasis added). The detective averred that, on this one prior occasion, the information supplied by the CI led to the seizure of heroin and the arrest of three individuals. The detective did not aver that he personally ever worked with the CI.
In contrast to the detective's affidavit, the person identified as the CI testified at the Darden hearing that he/she worked with the detective "[m]aybe 100" times prior to the subject warrant; and that "[p]rior to this search warrant," he/she had sworn out approximately 100 search warrants for the detective. When questioned by the Supreme Court, the detective confirmed that it was correct to say that he and the CI worked together on approximately 100 search warrants. The detective testified that the CI had provided good information on "probably all of" those prior 100 occasions. When asked by the court if there were any discrepancies, the detective stated that there were none. Consequently, the detective never explained why in his search warrant affidavit he averred that the CI provided reliable information on only one prior occasion.
Additionally, the detective's description of the two controlled buys in his search warrant affidavit was significantly different from the single controlled buy described by the alleged CI at the Darden hearing. In his search warrant affidavit, the detective averred that in a first controlled buy, the CI purchased drugs from a female, and then in the second controlled buy he/she purchased drugs from a male. However, at the Darden hearing, the alleged CI described only one controlled buy in which he/she purchased drugs from a male. The alleged CI testified that he/she had never been to the subject apartment prior to that controlled buy. Overall, the alleged CI's Darden hearing testimony describing the circumstances of a single controlled buy cannot, on this record, be reconciled with the detective's affidavit describing the circumstances of two controlled buys.
Contrary to our dissenting colleagues' opinion, the detective's Darden testimony that he worked with the CI approximately 100 times does not bolster the search warrant application wherein he averred that the CI had only provided reliable information to the police on 1 occasion. Where a search warrant application is based upon hearsay information from a CI, it is critical that the officer give accurate information from which the court may assess, inter alia, the CI's reliability (see Spinelli v. United States , 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 ; Aguilar v. Texas , 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 ; People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 ; People v. Rayner , 171 A.D.2d 820, 567 N.Y.S.2d 764 ; People v. Burks , 134 A.D.2d at 605, 521 N.Y.S.2d 718 ). The detective's inconsistency on the critical issue of the CI's track record of reliability and whether the CI had ever worked with the detective, in itself, calls into doubt whether the person identified as the CI at the Darden hearing was the same person referred to as the CI in the detective's affidavit.
Furthermore, we disagree with our dissenting colleagues' attempt to reconcile the contradictory information by resorting to speculation. The People, who bear the burden at the Darden hearing, failed to proffer any evidence or testimony reconciling the aforementioned material contradictions.
Given these inconsistencies regarding the CI's track record and relationship with the detective, and the facts which supported the search warrant application, we disagree with the Supreme Court's conclusion, inter alia, that the People...
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