People v. Thomas

• Citation: 155 A.D.3d 1120,64 N.Y.S.3d 702
• Parties: The PEOPLE of the State of New York, Respondent, v. Gavin THOMAS, Appellant.
• Decision Date: 02 November 2017
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1120
64 N.Y.S.3d 702

The PEOPLE of the State of New York, Respondent,
v.
Gavin THOMAS, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 2, 2017.

64 N.Y.S.3d 704

Cheryl Coleman Law Offices, Albany (Kathryn E. Conklin of counsel), for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., DEVINE, AARONS and RUMSEY, JJ.

EGAN JR., J.

155 A.D.3d 1120

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered November 18, 2015, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree.

In September 2014, the City of Albany Police Department commenced an investigation into defendant upon receipt of a complaint from a female victim that he had approached her in a motor vehicle and threatened her with a firearm. The victim identified defendant in a photo array and provided the police with a description of defendant's vehicle. Shortly thereafter, police located defendant's vehicle, executed a traffic stop and took defendant into custody for certain charges resulting from the stop. While defendant remained in custody, detectives successfully applied for and executed a search warrant on defendant's first-floor apartment located at 202 Jefferson Street in the City of Albany wherein they seized, among other things, a semiautomatic pistol and a Taurus .38 revolver. As a result, defendant was ultimately charged in a four-count superceding indictment with two counts of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and menacing in the second degree.

Defendant thereafter moved to suppress the seized weapons on the ground that the search warrant was defective inasmuch as it failed to describe with sufficient particularity the premises to be searched. Following a hearing, County Court denied the motion. Defendant then sought a judicial subpoena duces tecum ordering the Albany Police Department to produce,

155 A.D.3d 1121

among other things, the personnel records of Scott Gavigan, a detective involved in the search of defendant's residence. The City of Albany thereafter moved to quash the subpoena and, following a hearing, County Court granted the motion. Following a jury trial, defendant was convicted of two counts of criminal possession of a weapon in the second degree and one count of criminal possession of a weapon in the third degree. Defendant's motion to set aside the verdict pursuant to CPL 330.30(1) was subsequently denied and he was thereafter sentenced, as a second violent felony offender, to 15 years in prison to be followed by five years of postrelease supervision for each conviction of criminal possession of a weapon in the second degree and a concurrent prison sentence of 3 ½ to 7 years on the conviction for criminal possession of a weapon in the third degree. Defendant now appeals and we affirm.

Initially, we are unpersuaded by defendant's contention that the search warrant executed on his residence was fatally defective for failing to describe the premises to be searched with sufficient particularity. While particularity of a search warrant is certainly required, "[t]his does not mean that hypertechnical accuracy and completeness of description must be attained but rather, from the standpoint of common sense, that the descriptions

64 N.Y.S.3d 705

in the warrant and its supporting affidavits be sufficiently definite to enable the searcher to identify the persons, places or things that the Magistrate has previously determined should be searched or seized" ( People v. Nieves, 36 N.Y.2d 396, 401, 369 N.Y.S.2d 50, 330 N.E.2d 26 [1975] [internal citations omitted]; accord People v. Carpenter, 51 A.D.3d 1149, 1149–1150, 857 N.Y.S.2d 344 [2008], lv. denied 11 N.Y.3d 786, 866 N.Y.S.2d 613, 896 N.E.2d 99 [2008] ). Here, the search warrant directed police officers to search "[t]he residence of 202 Jefferson Street, Albany, NY, to include all stairways, attics, basements, yards and sheds" and specified that the residence was a "two-story brickfront apartment duplex building with a blue door." Although the warrant was facially deficient to the extent that it failed to specify whether detectives were to search the upstairs or downstairs apartment of the two-unit duplex (see e.g. People v. Mitchell, 57 A.D.3d 1232, 1233, 870 N.Y.S.2d 541 [2008], lv. denied 12 N.Y.3d 760, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009] ; People v. Henley, 135 A.D.2d 1136, 1136, 523 N.Y.S.2d 258 [1987], lv. denied 71 N.Y.2d 897, 527 N.Y.S.2d 1007, 523 N.E.2d 314 [1988] ), the imprecise description did not invalidate the search inasmuch as the affidavit in support of the search warrant specifically identified the apartment to be searched as "[defendant's] residence" (see People v. Wallace, 238 A.D.2d 807, 808–809, 656 N.Y.S.2d 513 [1997], lvs. denied 90 N.Y.2d 865, 661 N.Y.S.2d 192, 683 N.E.2d 1066 [1997] ; People v. Davenport, 231 A.D.2d 809, 810, 647 N.Y.S.2d 306 [1996], lv. denied 89 N.Y.2d 921, 654 N.Y.S.2d 723, 677 N.E.2d 295 [1996] ) and, upon execution, the detectives were able "to readily ascertain and identify the target premises with reasonable and minimal

155 A.D.3d 1122

effort" ( People v. Mitchell, 57 A.D.3d at 1233, 870 N.Y.S.2d 541 ; see People v. Lavin, 220 A.D.2d 886, 887, 632 N.Y.S.2d 338 [1995], lv. denied 87 N.Y.2d 904, 641 N.Y.S.2d 234, 663 N.E.2d 1264 [1995] ; People v. Fahrenkopf, 191 A.D.2d 903, 903, 595 N.Y.S.2d 139 [1993] ).¹ Nor do we find that the police officer's use of defendant's key to enter the residence otherwise rendered the search invalid (see generally People v. Binns, 299 A.D.2d 651, 652–653, 749 N.Y.S.2d 615 [2002], lv. denied 99 N.Y.2d 612, 757 N.Y.S.2d 822, 787 N.E.2d 1168 [2003] ).

We likewise find no error in County Court granting the City's motion to quash a judicial subpoena duces tecum directing the Albany Police Department to disclose Gavigan's personnel record. "The personnel records of police officers, including documents pertaining to misconduct or violations of rules, are confidential and are not subject to inspection or review ... ‘except as may be mandated by lawful court order’ " ( People v. Johnson, 150 A.D.3d 1390, 1391, 53 N.Y.S.3d 412 [2017], lv. denied 29 N.Y.3d 1128, 64 N.Y.S.3d 678, 86 N.E.3d 570 [2017], quoting Civil Rights Law § 50–a [1 ] ). Accordingly, it is the burden of the party seeking disclosure to demonstrate some good faith, factual predicate warranting the intrusion (see People v. Darrell, 145 A.D.3d 1316, 1319, 45 N.Y.S.3d 223 [2016], lv. denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ;

64 N.Y.S.3d 706

People v. Harris, 121 A.D.2d 788, 789, 504 N.Y.S.2d 552 [1986], lv. denied 68 N.Y.2d 770, 506 N.Y.S.2d 1054, 498 N.E.2d 156 [1986] ).

Here, the allegations set forth in defense counsel's supporting affidavit failed to establish any good faith, factual basis supporting the request for a subpoena and, instead,...