| People v Mabeus |
| 2008 NY Slip Op 00304 [47 AD3d 1073] |
| January 17, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DavidMabeus, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Malone, J. Appeal from a judgment of the County Court of Schenectady County (Eidens, J.),rendered August 9, 2004, convicting defendant upon his plea of guilty of the crime of robbery inthe first degree.
Between December 2002 and July 2003, four armed robberies occurred at two McDonald'srestaurants located in Saratoga County, one in the Town of Ballston and the second in the Townof Malta. State Police undertook an investigation into these robberies which disclosed certaininformation implicating defendant as the perpetrator. As a result, an application was made for asealed order authorizing the surreptitious placement of a global positioning system (hereinafterGPS) tracking device on defendant's vehicle and that of his live-in girlfriend. The application wasgranted on July 25, 2003 and a GPS tracking device was thereafter affixed to defendant's 2003Ford pickup truck without his knowledge. On August 9, 2003 at approximately 11:20 p.m., anarmed robbery occurred at a McDonald's restaurant located in the Town of Glenville,Schenectady County. The GPS tracking device revealed that defendant's pickup truck was in thevicinity of the restaurant at the time of the robbery and also earlier that day, and that it proceededto defendant's place of employment immediately after the robbery before returning to defendant'sresidence. When defendant returned to his residence at approximately 11:55 p.m. driving thevehicle, he was stopped at gunpoint by police and taken into physical custody. At that time, anaxe, a black ski mask and four wrapped packets of currency were seized from his vehicle.Defendant was immediately taken to the State Police barracks where he was interviewed [*2]by police officers and was identified in a showup by McDonald'semployees. Police then secured two search warrants authorizing the search of defendant's pickuptruck, his place of employment and his residence, which resulted in the discovery of additionalincriminating items.
Defendant was charged in an eight-count indictment with various crimes in connection withthe Schenectady County robbery. He filed an omnibus motion seeking, among other things, thesuppression of certain evidence seized as a result of the sealed order and search warrants as wellas any statements made to the police or, in the alternative, a Mapp/Dunaway hearing.County Court denied defendant's request for a Mapp/Dunaway hearing, but agreed toconduct a Huntley hearing and to hear oral argument on the propriety of the searchwarrants. At the conclusion of the Huntley hearing, the court denied defendant'ssuppression motion upon finding that the sealed order and search warrants were validly obtainedand that there was probable cause for defendant's arrest. Defendant subsequently pleaded guiltyto robbery in the first degree, without waiving his right to appeal, and was sentenced to 20 yearsin prison and five years of postrelease supervision. He now appeals.
A major aspect of defendant's appeal is his challenge to the validity of the sealed order andsearch warrants and the legality of the evidence obtained as a result, which he contends should, atthe very least, have been the subject of a Mapp/Dunaway hearing. While a hearing tosuppress evidence is not automatic under CPL 710.60 (1), it is warranted if the motion paperscontain sufficient factual allegations (seePeople v Bryant, 8 NY3d 530, 533 [2007]; People v Davis, 45 AD3d 1039, 1041 [2007]). The sufficiency ofthe movant's factual allegations is determined by reference to the face of the pleadings, thecontext of the motion and the defendant's access to information (see People v Mendoza,82 NY2d 415, 422 [1993]). Regardless of whether a hearing is conducted, it is incumbent uponCounty Court, in deciding such a motion, to set forth its findings of fact, conclusions of law andthe reasons for its determination (see CPL 710.60 [6]; People v Mendoza, 82NY2d at 421).
In the case at hand, defense counsel submitted an affirmation in support of the motion statingthat defendant was lawfully operating his vehicle on the night in question when he wasapprehended by police officers at gunpoint in his driveway and that the only basis for the policeofficers' actions was the information obtained through the GPS tracking device that was installedunder a purportedly illegal sealed order. His affirmation outlines many alleged deficiencies in theapplications for the sealed order and search warrants, including the questionable reliability of theconfidential informant, misinformation concerning defendant's ownership of a motorcycle at thetime of one of the Saratoga County robberies and the reference in a statement by a McDonald'semployee to an axe allegedly used in the Schenectady County robbery which defense counselcontends was illegally seized from defendant's pickup truck. In addition, at oral argument, it wasrevealed that no facts have been established concerning the manner and circumstancessurrounding the installation of the GPS tracking device or the seizure of the axe, black ski maskand bundled currency from defendant's vehicle.[FN*][*3]
In view of this, and considering that the charges in theindictment reference the weapons and/or currency seized, that the legality of the sealed order andsearch warrants has a direct bearing on probable cause and that defendant had limited access toinformation, particularly with respect to the confidential informant, we find that defendant'sfactual allegations are sufficient to warrant a Mapp/Dunaway hearing (see People vBryant, supra; People v Mendoza, supra). We further find that County Court failed toadequately set forth its findings of fact and conclusions of law in denying the motion as requiredby CPL 710.60 (6). Therefore, we hold this appeal in abeyance pending the completion of aMapp/Dunaway hearing to further develop the record with respect to the circumstancessurrounding the applications for the sealed order and search warrants and the execution thereof,as well as the manner in which evidence sought to be suppressed was recovered (see e.g.People v Mathison, 282 AD2d 283 [2001]).
Cardona, P.J., Spain, Carpinello and Kane, JJ., concur. Ordered that the decision is withheld,and matter remitted to the County Court of Schenectady County for further proceedings notinconsistent with this Court's decision.
Footnote *: Notably, the sealed order onlyauthorized the installation of the GPS tracking device, not the search of defendant's vehicle. Thesearch warrant authorizing the latter was not obtained until after defendant was taken intocustody.