| People v Worrell |
| 2016 NY Slip Op 03206 [138 AD3d 1154] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ekins Worrell, Appellant. |
Lynn W. L. Fahey, New York, NY (Paul Skip Laisure of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, William H. Branigan, and Josette Simmons McGhee of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered May 30, 2013, convicting him of promoting a sexual performance bya child (two counts), upon his plea of guilty, and imposing sentence. The appeal bringsup for review the denial (Modica, J.), without a hearing, of that branch of the defendant'somnibus motion which was to controvert a search warrant and his separate motion tosuppress physical evidence on the ground that it was the product of an unlawful searchby police.
Ordered that the matter is remitted to the Supreme Court, Queens County, for ahearing and a new determination thereafter of that branch of the defendant's omnibusmotion which was to controvert a search warrant and his separate motion to suppressphysical evidence on the ground that it was the product of an unlawful search by police,and the appeal is held in abeyance in the interim. The Supreme Court, Queens County,shall file its report with all convenient speed.
The defendant was charged in an indictment, inter alia, with promoting a sexualperformance by a child, based upon evidence obtained from a computer seized from hishome upon the execution of a search warrant. The police detective who applied for thewarrant averred in the warrant application that he had used certain software available tolaw enforcement agencies to investigate peer-to-peer file sharing networks, and throughthe use of this, and other programs and databases, ultimately identified an InternetProtocol address registered to the defendant's home as having shared files on apeer-to-peer network, which contained child pornography.
The defendant filed an omnibus motion, inter alia, to controvert the search warrant,and later separately moved to suppress physical evidence on the ground that it was theproduct of an unlawful, warrantless search by police. The Supreme Court summarilydenied both motions. The defendant thereafter pleaded guilty to two counts of promotinga sexual performance by a child.
Contrary to the People's contention, the defendant's purported waiver of his right toappeal was invalid. The record does not demonstrate that the defendant grasped theconcept of the appeal waiver and the nature of the right he was forgoing (see People v Bradshaw, 18NY3d 257, [*2]267 [2011]; People v Argilagos, 136 AD3d1050 [2016]; People vSulsona, 134 AD3d 861 [2015]; People v Whitney, 125 AD3d 795 [2015]; People v Suazo, 120 AD3d1270, 1271 [2014]).
In determining a motion to suppress evidence, the court "is required to grant ahearing if the defendant 'raise[s] a factual dispute on a material point which must beresolved before the court can decide the legal issue' of whether evidence was obtained ina constitutionally permissible manner" (People v Burton, 6 NY3d 584, 587 [2006], quotingPeople v Gruden, 42 NY2d 214, 215 [1977]; see CPL 710.60 [3] [a], [b];People v Mendoza, 82 NY2d 415, 426 [1993]). "[T]he sufficiency of [a]defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2)assessed in conjunction with the context of the motion, and (3) defendant's access toinformation" (People v Mendoza, 82 NY2d at 426).
In his omnibus motion, the defendant contended that the search warrant was notsupported by probable cause. The defendant's motion included detailed factualallegations regarding the functioning of peer-to-peer networks and, based on theseassertions, challenged the detective's contention in the warrant application that he wasable to identify child pornography files that actually existed on the defendant's computer.In his separate suppression motion, the defendant raised a factual dispute, inter alia, as towhether the use of certain software or other activity by the investigating detective prior tosecuring the warrant constituted a search of his computer. Accordingly, a hearing wasrequired to resolve these factual disputes (see generally id. at 433-434; People v Jennings, 110 AD3d738, 739 [2013]).
Further, the Supreme Court improperly, in the alternative, denied the defendant'sseparate suppression motion as untimely. The motion was based upon facts of which thedefendant had previously been unaware (see CPL 710.40 [2]; cf. People vTurner, 49 NY2d 925 [1980]). Moreover, the lateness of the separate motion did notdelay the proceeding since it was made before the court had decided that branch of thedefendant's omnibus motion which was to controvert the search warrant. Under thesecircumstances, it is appropriate to consider the merits of the separate motion (seeCPL 710.40 [2]; 255.20 [3]).
We, therefore, remit the matter for a hearing and a new determination thereafter ofthat branch of the defendant's omnibus motion which was to controvert the searchwarrant and his separate motion to suppress physical evidence on the ground that it wasthe product of an unlawful search by police. Balkin, J.P., Roman, Maltese and Connolly,JJ., concur.