| People v Gramson |
| 2008 NY Slip Op 03045 [50 AD3d 294] |
| April 3, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v SusanGramson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Amyjane Rettew of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J., on pretrial motions; RuthPickholz, J., at jury trial and sentence), rendered August 2, 2006, convicting defendant of moneylaundering in the second degree and two counts of promoting prostitution in the third degree, andsentencing her to an aggregate term of five years' probation, unanimously affirmed.
The suppression court properly denied defendant's challenge to the search warrant. Thepremises to be searched were sufficiently described so that there was no reasonable possibilitythat the wrong premises would be searched. Although the affiant in the search warrantapplication described the place to be searched as the second and third floor of a certain building,while the building contained a lower duplex with two floors and an upper duplex with two floors,it is clear that the affiant did not count the ground floor as the first floor, but began counting onthe second floor (see People v Traymore, 241 AD2d 226 [1998], lv denied 92NY2d 907 [1998]). Thus, by his method, he accurately described the two floors of the upperduplex. Moreover, as it was the same detective who applied for and executed the warrant, therewas no possibility that the wrong premises would be searched (see People v Rodriguez,254 AD2d 95 [1998]; People v Graham, 220 AD2d 769, 772 [1995], lv denied 89NY2d 942 [1997]). For these same reasons, the affiant's description of the safe on the "secondfloor" did not create a reasonable possibility that the wrong safe would be searched.
Furthermore, the warrant repeatedly stated the address to be searched, which was the addressof the upper duplex. The lower duplex had a different address and a different entrance. Thewarrant also clearly stated that it was defendant's premises which were to be searched, which"allowed police to ascertain the target [premises] by minimal inquiry at the site, without therebeing anything but the remotest possibility that the wrong place would be searched" (People vFahrenkopf, 191 AD2d 903 [1993] [internal quotation marks and citation omitted]).
We also reject defendant's staleness arguments. "Information may be acted upon as long asthe practicalities dictate that a state of facts existing in the past, which is sufficient to give rise toprobable cause, continues to exist at the time the application for a search warrant is made."(People v Clarke, 173 AD2d 550, 550 [1991]; see also People v Munoz, 205AD2d 452 [1994], lv denied 84 NY2d 870 [1994].) Here, the search [*2]warrant application made clear that defendant's prostitutionenterprise was an ongoing, continuous enterprise (see People v Villanueva, 161 AD2d552, 553 [1990]).
We also find that the warrant was supported by probable cause. A presumption of validityattaches to a warrant (People v Castillo, 80 NY2d 578, 585 [1992], cert denied507 US 1033 [1993]). Evaluation of whether probable cause exists in a warrant affidavitshould be based on all the facts and circumstances viewed together (People v Bigelow,66 NY2d 417, 423 [1985]), and the affidavit should not be read in a hypertechnical manner, butconsidered in the light of everyday experiences (People v Traymore, 241 AD2d at229-230). Here, defendant advertised her services in the "adult" section of a magazine andoffered "escort services" on her Web sites (see United States v Kinzler, 55 F3d 70, 71 [2dCir 1995] [escort services are generally fronts for prostitution]). Phone calls to contact numbersrevealed that appointments to this purported massage parlor could only be made from a phonelinked to a verifiable home or business, or by persons who had previously used the service andhad a private code. One officer was expressly told over the phone that sex could be obtained formoney, and others were hung up on when they failed to recite a proper code. The affiant couldrely on these assertions by fellow officers (see People v Robinson, 8 AD3d 131, 133 [2004], lv denied3 NY3d 680 [2004]). Furthermore, surveillance of the premises demonstrated activityconsistent with a brothel. These facts were sufficient to establish probable cause, which "does notrequire proof sufficient to warrant a conviction beyond a reasonable doubt but merelyinformation sufficient to support a reasonable belief that an offense has been or is beingcommitted or that evidence of a crime may be found in a certain place" (People vBigelow, 66 NY2d at 423).
We have considered and rejected defendant's remaining suppression claims, including herarguments regarding the need for a Darden hearing (People v Darden, 34 NY2d177, 181 [1974]), a Franks/Alfinito hearing (Franks v Delaware, 438 US154 [1978]; People v Alfinito, 16 NY2d 181 [1965]), or any other type of hearing.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appealbecause they rely primarily on factual assertions outside the record, including matters aboutwhich appellate counsel claims to have personal knowledge (see People v Rivera, 71NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). On the existing record, tothe extent it permits review, we find that defendant received effective assistance under the stateand federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; seealso Strickland v Washington, 466 US 668 [1984]). Concur—Lippman, P.J., Tom,Buckley and Moskowitz, JJ.