| People v Ferguson |
| 2016 NY Slip Op 00717 [136 AD3d 1070] |
| February 4, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPatrick Ferguson, Appellant. |
Marshall Nadan, Kingston, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Clark, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered May 15, 2013, upon a verdict convicting defendant of the crime of robberyin the first degree.
On May 20, 2012 at approximately 9:20 p.m., Officer Benny Reyes of the KingstonPolice Department responded to 190 Tremper Avenue in the City of Kingston, UlsterCounty to investigate allegations of an assault and robbery. The victim of the allegedcrimes, who had blood on his clothing, told Reyes that he was walking down the streetwhen two people, one of whom was defendant, forced him at knife point into thefirst-floor apartment located at that address. The victim further indicated to Reyes that astruggle ensued during which defendant was injured by the knife.
At the alleged crime scene, police officers' knocks went unanswered and theirattempts to see through the windows into the apartment were unsuccessful. Afterexamining the interior common area and the exterior of the building without finding anyblood, Reyes and two other officers obtained a key from the landlord—whoindicated that the apartment was rented to defendant and that he had heard "disturbingsounds" coming from inside earlier that day. They entered the apartment to conduct acursory sweep search to determine if anyone was injured inside. Finding no one, theofficers left the apartment after approximately two minutes without seizing any evidence.Thereafter, one of the officers applied for a search warrant executable at any time of theday or night, while other police officers secured each entrance of the apartment. After thesearch warrant application was granted permitting an all-hours search, the warrant wasexecuted at approximately 12:50 a.m., which resulted in the seizure of certain physicalevidence [*2]implicating defendant in the crimes.
Defendant and a codefendant were thereafter charged by a three-count indictmentwith robbery in the first degree, unlawful imprisonment in the first degree and robbery inthe third degree.[FN1] Following a suppression hearing,County Court denied defendant's motion to suppress the property seized as a result of themiddle of the night execution of the search warrant. Defendant was thereafter convictedby a jury of one count of robbery in the first degree and was sentenced to 10 years inprison followed by five years of postrelease supervision. Arguing only that there did notexist any basis for the middle of the night search of the apartment and, as such, CountyCourt erred in denying his motion to suppress, defendant appeals. We disagree and,therefore, affirm.
Generally, search warrants are to be "executed only between the hours of 6:00 [a.m.]and 9:00 [p.m.]" (CPL 690.30 [2]). However, a search after 9:00 p.m. for the purpose ofseizing designated property may be authorized when the application for the searchwarrant alleges that "there is reasonable cause to believe that (i) [the warrant] cannot beexecuted between the hours of 6:00 [a.m.] and 9:00 [p.m.], or (ii) the propertysought will be removed or destroyed if not seized forthwith" (CPL 690.35 [4] [a] [i], [ii][emphasis added]; see People vSherwood, 79 AD3d 1286, 1287-1288 [2010]). When undertaking to review thevalidity of a search warrant, "the critical facts and circumstances for the reviewing courtare those which were made known to the issuing [court] at the time the warrantapplication was determined," rather than "the circumstances as they existed at the timethe warrant was executed" (People v Nieves, 36 NY2d 396, 402 [1975]; see People v Gilmore, 6 AD3d748, 749 [2004], lv denied 3 NY3d 640 [2004]; Rossi v City ofAmsterdam, 274 AD2d 874, 876 [2000]). Of particular relevance herein, defendantbears the burden of establishing "that the search warrant application contained a falsestatement made knowingly, intentionally or recklessly" (People v Folk, 44 AD3d1095, 1097 [2007], lv denied 9 NY3d 1006 [2007]; see People v Richardson, 28AD3d 1002, 1005 [2006], lv denied 7 NY3d 817 [2006]). "Notably, the[issuing] court's determination that probable cause existed must be afforded greatdeference" (People v Sall, 295 AD2d 812, 813 [2002], lv denied 98NY2d 771 [2002] [internal quotation marks and citations omitted]; see People vGilmore, 6 AD3d at 749; People v German, 251 AD2d 900, 901 [1998],lv denied 92 NY2d 897 [1998]).
Here, a review of the written search warrant application before the issuing courtindicates that the officers confirmed and secured what appeared to be a crime scene andrequested authorization to execute the warrant at any time of the day or night, allegingthat "there is reasonable cause to believe that: (a) [the warrant] cannot be executedbetween 6 [a.m.] and 9 [p.m.] because members [sic][FN2] [and/or] (b) the property sought to beseized may be destroyed if not seized forthwith, because the [p]roperty sought to beseized can easily be destroyed or [*3]removed." Insupport of the application, the deponent, a detective with the Kingston PoliceDepartment, asserted that, at about 8:38 p.m. on May 20, 2012, the police received a callfrom the victim alleging that he was robbed, and, during the ensuing investigation, henoticed blood on the victim's shirt and learned that the victim was dragged at knife pointinto the subject apartment and robbed of money and personal belongings. A statementfrom the victim, which was attached to the search warrant application, detailed that,among other things, defendant placed a knife at the victim's throat, dispossessed him ofhis valuables, including $1,500 in cash and a gold ring, and tried to stab him. Thevictim's statement also provided that defendant cut himself with the knife and wasbleeding a lot.
Despite defendant's contention to the contrary, the record before us supports thedetermination that an immediate middle of the night search of the apartment wasreasonably necessary because of the potential loss of evidence, the recovery of thatevidence was essential to the continued progress of the investigation and thewhereabouts of the suspects of this violent crime were still unknown (see People vSilverstein, 74 NY2d 768, 769 [1989], cert denied 493 US 1019 [1990]). Bythe time that the police completed the interview of the victim, took the written statementand conducted a photographic identification procedure, it was after midnight. Thepracticalities of the situation establish that it would have been unreasonable for the policeto wait an additional five or six hours to execute a warrant under thesecircumstances.
Thus, limiting our focus to the circumstances made known to the issuing court at thetime the warrant was issued and according deference to that court's determinationregarding the existence of reasonable cause, we find that County Court could reasonablyinfer that the crucial evidence of the alleged robbery, including the suspect's blood, theknife and the property robbed from the victim, were inside the subject apartment and thatthose items could be readily destroyed or disposed of by the suspect (see People vRose, 31 NY2d 1036, 1038 [1973, Jones, J., dissenting]).[FN3] Furthermore, defendant failed tosustain his burden of demonstrating that the search warrant application contained a falsestatement made knowingly, intentionally or recklessly (see People v Folk, 44AD3d at 1097; People v Richardson, 28 AD3d at 1005). Accordingly, the middleof the night search here was not unreasonable and County Court properly denieddefendant's motion to suppress the evidence seized pursuant to the search warrant.
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:It appears from therecord that defendant's case was severed from that of his codefendant at some point afterthe pretrial suppression hearing and before the jury trial.
Footnote 2:To the extent that thewarrant application contains an incomplete sentence, any failure in this regard constituteda technical violation, which does not require the suppression of evidence (see Peoplev Silverstein, 74 NY2d 768, 770 [1989], cert denied 493 US 1019 [1990]; People v Lauber, 36 AD3d949, 950 [2007], lv denied 8 NY3d 924 [2007]).
Footnote 3:We note that the searchwarrant application here made no request for a no-knock search and, therefore, theapplicable standard of necessary proof is reasonable cause (see CPL 690.35 [4][a]; People v Rose, 31 NY2d at 1038; compare People v Sherwood, 79AD3d at 1288-1289).