| People v Ward |
| 2019 NY Slip Op 01107 [169 AD3d 833] |
| February 13, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Ward, Appellant. |
Arza Feldman, Uniondale, NY, for appellant, and appellant pro se.
Madeline Singas, District Attorney, Mineola, NY (Daniel Bresnahan and Judith R. Sternberg ofcounsel), for respondent.
Appeal by the defendant, by permission, from an order of the County Court, Nassau County(Meryl J. Berkowitz, J.), dated May 27, 2015, which, without a hearing, denied his motion pursuant toCPL 440.10 to vacate a judgment of the same court (George R. Peck, J.) rendered March 8, 2011,convicting him of burglary in the first degree, assault in the second degree, petit larceny, and resistingarrest, upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
The defendant was convicted, after a jury trial, of burglary in the first degree, assault in the seconddegree, petit larceny, and resisting arrest. The facts of this case are set forth in this Court's decision andorder on the defendant's direct appeal from the judgment of conviction (see People v Ward, 116 AD3d 989[2014]). At trial, after the jury rendered its verdict, the People gave the defendant, for the first time, acopy of a crime scene examination report which contained a handwritten notation. The notationindicated that the defendant's cell phone, which had been recovered from the backyard of thecomplainant's house, had been "opened," approximately seven months prior to a court-ordered searchof the phone, in order to find the phone's serial number located under the battery in the back of thephone. The notation, which did not appear on a copy of the document previously provided by thePeople, contradicted prior assurances by the People that no notations existed relating to the recovery ofthe phone, as well as testimony by the People's police witnesses that the phone was searched pursuantto a warrant.
Upon discovering this evidence, the defendant moved, prior to sentencing, pursuant to CPL 330.30and 330.40 to set aside the verdict. The County Court denied the motion, and the denial was affirmedby this Court, which, without setting forth the factual details, determined that "the People's failure todisclose a particular document to the defense until after the trial [did] not warrant reversal, since [thedefendant] failed to show that there was 'a reasonable possibility that the non-disclosure materiallycontributed to the result of the trial' " (People v Ward, 116 AD3d at 992, quoting CPL240.75; see People v Jingzhi Li, 104AD3d 704, 705 [2013]).
In November 2014, the defendant moved pursuant to CPL 440.10 (1) to vacate the judgment ofconviction, contending, among other things, that his cell phone was illegally searched. The County Courtdenied the motion, and the defendant appeals.
Pursuant to CPL 440.10 (1), "[a]t any time after the entry of a judgment, the court in which it wasentered may, upon motion of the defendant, vacate such judgment" upon various grounds. The courtmust deny such a motion when "[t]he ground or issue raised upon the motion was previouslydetermined on the merits upon an appeal from the judgment, unless since the time of such appellatedetermination there has been a retroactively effective change in the law controlling such issue" (CPL440.10 [2] [a]).
The defendant does not dispute that the issue raised in his CPL 440.10 motion was previouslydetermined on the merits on his direct appeal from the judgment of conviction. Instead, he contends thatsince the time of this Court's determination, there has been a retroactively effective change in the lawcontrolling the issue (see CPL 440.10 [2] [a]). Specifically, the defendant contends that, underRiley v California (573 US 373 [2014]), the warrantless search of the cell phone violated theFourth and Fourteenth Amendments to the United States Constitution and, as such, was illegal. Weagree with the County Court that the defendant's reliance on Riley is misplaced.
The general rule regarding custodial searches is that "in the case of a lawful custodial arrest a fullsearch of the person is not only an exception to the warrant requirement of the Fourth Amendment, butis also a 'reasonable' search under that Amendment" (United States v Robinson, 414 US 218,235 [1973]). However, the Supreme Court of the United States in Riley declined to apply thisgeneral rule where the search, incident to the defendant's arrest, was of a " 'smartphone,' " i.e., "a cell phone with a broad range of other functions based on advanced computingcapability, large storage capacity, and Internet connectivity," seized from the defendant's pants pocket,and included a search of the phone's digital contents (Riley v California, 573 US at 379). TheCourt declined to extend Robinson's rule to searches of "digital content on cell phones," andheld, instead, "that officers must generally secure a warrant before conducting such a search" (Rileyv California, 573 US at 386). The Court recognized that "[a] search of the information on a cellphone bears little resemblance to the type of brief physical search considered in Robinson"(Riley v California, 573 US at 386; see Carpenter v United States, 585 US &mdash,138 S Ct 2206, 2214 [2018]).
Here, unlike in Riley, the subject was a physical search of the phone, in which the policeopened the back of the phone and looked under the battery to obtain the phone's serial number. Assuch, the intrusion on the defendant's privacy was limited to the fact of his ownership of the phone, anddid not implicate any of the aspects found to distinguish a digital search from a search of any otherphysical object (cf. Riley v California, 573 US 373 [2014]). Therefore, Riley did noteffect a change in the law controlling the search at issue here.
The defendant's remaining contentions, raised in his pro se supplemental brief, are withoutmerit.
Accordingly, we agree with the County Court's determination to deny the defendant's motionpursuant to CPL 440.10 (see CPL 440.10 [2] [a]). Dillon, J.P., Miller, LaSalle and Iannacci,JJ., concur.