| People v Moxley |
| 2016 NY Slip Op 02192 [137 AD3d 1655] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Appellant, v Tavaris Moxley, Respondent. |
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forappellant.
Timothy P. Donaher, Public Defender, Rochester (Jane Yoon of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Monroe County (Alex R. Renzi, J.),dated July 25, 2014. The order granted defendant's motion to suppress tangibleevidence.
It is hereby ordered that the order so appealed from is unanimously affirmed and theindictment is dismissed.
Memorandum: The People appeal from an order granting defendant's motion seekingsuppression of tangible evidence seized pursuant to a search warrant. On March 10,2014, a murder was committed in a residence on Grafton Street in Rochester, New York.Police investigation revealed that defendant and the victim's nephew had been driven tothe Grafton Street residence on the day of the murder. The police obtained a searchwarrant to "ping" defendant's cell phone, and it was discovered that defendant's phoneappeared to be "at or in the area of 283-285 Lincoln Ave[nue]" from March 12, 2014 toMarch 14, 2014. Further investigation revealed that defendant was observed meetingwith persons in vehicles in the driveway of 285 Lincoln Avenue for not more than fiveminutes at a time. However, no one was observed entering or leaving the dwelling at 285Lincoln Avenue. The police further learned that the utilities for the 285 Lincoln Avenueresidence were not registered in defendant's name. Defendant was, however, a Facebook"friend" of the person to whom the utilities were registered. Based upon the aboveinformation, inter alia, the police applied for a search warrant for 285 Lincoln Avenue.County Court (Piampiano, J.) determined that there was "probable cause for believingthat the property described [in the warrant] is evidence of a crime of Murder. . . and Criminal Possession of a Weapon." The search warrant authorizedthe police to search 285 Lincoln Avenue and its curtilage in order to find and seize:blood-related evidence; "a black knit hat, black sweat pants, grey hoodie, and blackboots"; and defendant's cell phone and the contents of that cell phone. When the searchwarrant was executed, two unrelated handguns and more than 16 ounces of marihuanawere recovered from 285 Lincoln Avenue. Defendant was indicted by a grand jury andcharged with two counts of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [1] [b]), and one count of criminal possession of marihuanain the second degree (§ 221.25). Following a suppression hearing, SupremeCourt (Renzi, J.) granted defendant's motion. We affirm and dismiss the indictment.
We reject the People's contention that there was reasonable cause to believedefendant possessed evidence or contraband relating to the Grafton Street murder andreasonable cause to believe that the evidence or contraband would be located at 285Lincoln Avenue. It is well settled that a search warrant may be issued only upon ashowing of probable cause to believe that a crime has occurred, is occurring, or is aboutto occur (see generally People v Mercado, 68 NY2d 874, 875-876 [1986], certdenied 479 US 1095 [1987]), and where there is sufficient evidence from which toform a reasonable belief that evidence of the crime may be found inside the locationsought to be searched (see People v Bigelow, 66 NY2d 417, 423 [1985]). Here,we conclude that the [*2]Supreme Court properlydetermined that the application for the search warrant contained no specific factualallegations that tied the location of 285 Lincoln Avenue to the evidence sought to beseized; failed to establish any dominion and control of 285 Lincoln Avenue bydefendant; and failed to tie defendant to the Grafton Street murder, or to his possessionof evidence or contraband pertaining to that murder (see generally People vMasters, 33 AD2d 637, 637 [1969]; People v Lawrence, 31 AD2d 712,713-714 [1968]).
In light of our determination, "the indictment must be dismissed [inasmuch as] theunsuccessful appeal by the People precludes all further prosecution of defendant for thecharges contained in the accusatory instrument" (People v Felton, 171 AD2d1034, 1034 [1991], affd 78 NY2d 1063 [1991]; see CPL 450.50 [2]).Present—Whalen, P.J., Peradotto, Carni, Lindley and DeJoseph, JJ.