People v Dockery 2015 NY Slip Op 32577(U) June 9, 2015 Supreme Court, Kings County Docket Number: 2856/2014 Judge: Danny K. Chun Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.
[* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CRIMINAL TERM PART 19 ------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK MARCELL DOCKERY, -against- Defendant. MOTION TO CONTROVERT SEARCH WARRANT DECISION AND ORDER IND. NO. 2856/2014 ------------------------------------------------------------------)( DANNY K. CHUN, J. The defendant moves to controvert the search warrants executed in this case, and requested this court to examine the search warrant materials in camera. A defendant is entitled to challenge the issuance of a search warrant on the grounds that there was no actual showing of probable cause, or that the affirmation issued in support of the search warrant contained perjury by a public servant. Franks v Delaware, 438 US 154 (1978); People v Biglow, 66 NY2d 417 (1985). There were a number of search warrants executed in connection to this case. This court will examine them in chronological order. First, this court examined in camera the search warrant signed by the Honorable Judge Mark Dwyer on April 7, 2014 and Fire Marshal Andre Ramos' affidavit in support of the search warrant. In addition, this court reviewed the return of the search warrant signed by the Honorable Judge John Ingram on April 11, 2014. The target location was 2007 Surf Avenue, Apartment 12G in Brooklyn, New York. In the affidavit in support of the search warrant, Fire Marshal Ramos stated that he was informed by Detective Gilberto Alonso that on April 6, 2014, Police Officers Rosa Rodriguez and Dennis Guerra responded to a radio transmission reporting a fue at 2007 Surf A venue, and 1
[* 2] they were overcome with smoke on the 13th floor (Affidavit of Fire Marshal Ramos on April 7, 2014 if 5). Fire Marshal Ramos was further informed by Detective Alonso that both officers were removed from the scene and were in critical condition (April 7 Aff if 5). Fire Marshal Ramos was also informed by Detective Alonso that he spoke to Noelia Torres at Apartment 13C who said a male that she believed to live at 13A had banged on her door and informed her that there was a fire (April 7 Affif 6). Detective Alonso informed Fire Marshal Ramos that Ms. Torres identified the defendant as the male that alerted her to the fire in the hallway Id. Fire Marshal Ramos stated that he was also informed by Detective Alonso that he spoke to Jalen Hallman at 13A who stated that he opened the door when somebody started banging and saw his cousin, the defendant, at the door and fire down the hallway (April 7 Aff if 7). Fire Marshal Ramos stated that Detective Alonso informed him that Mr. Hallman said he then went to 12G with the defendant. Id. Fire Marshal Ramos stated that Detective Alonso informed him that he was escorted to Apartment 12G by Gwendilyn Howard who was also present at 13A (April 7 Aff if 8). Fire Marshal Ramos stated that Detective Alonso informed him that he saw a match book without any matches on the defendant's bed, and Ms. Howard stated that she saw a red lighter in the defendant's bedroom earlier that day. Id. Fire Marshal Ramos stated that the defendant wrote a statement saying he observed a mattress in the hallway on the 13th floor, set fire on the edge of the mattress with a lighter, and after banging doors went to Apartment 12G where stayed there until the fire was over (April 7 Aff if 10). Second, this court examined in camera the search warrant signed by the Honorable Judge Ingram on April 9, 2014 and Detective Mitchell Eisenberg's affidavit in support of the search warrant. The target was a Dell Computer Tower and component parts in NYPD custody and assigned NYPD Property Clerk Invoice Number 30003555888. 2
[* 3] In the affidavit in support of the search warrant, Detective Eisenberg stated that he was informed by Sergeant Vicky Lisa that the subject computer was recovered from 2007 Surf Avenue, Apartment 12G pursuant to a search warrant signed by the Honorable Judge Dwyer on April 7, 2014 (Affidavit of Detective Eisenberg on April 9, 2014 ~ 3-4). Detective Eisenberg stated that he was informed by Detective Jorge Ortiz that upon examining the subject computer, he observed a sexually explicit photo (April 9 Aff if 4). Detective Eisenberg stated that he observed an image of a male over the age of twenty having his penis fully exposed and in direct contact with what appeared to be the genital area of a baby, who appeared to be less than eight months old. Id. Detective Eisenberg stated that the examination of the subject computer was halted pending the issuance of a search warrant authorizing them to search for images of child pornography (April 9 Aff~ 5). Third, this court examined in camera the search warrant signed by the Honorable Judge Hudson on April 9, 2014 and Detective Mitchell Eisenberg's affidavit in support of the search warrant. The target was a Dell Computer Tower and component parts in NYPD custody and assigned NYPD Property Clerk Invoice Number 3000355888. The only difference from the previous search warrant signed by the Honorable Judge Ingram on April 9, 2014 was that the Property Invoice Number that the computer was vouchered under was modified from 30003555888 to 300035588. Fourth, this court examined in camera the search warrant signed by the Honorable Judge Michael Gary on April 25, 2014 and Detective Gilberto Alonso's affidavit in support of the search warrant. The targets were a Facebook account, an Instagram account and two email addresses. 3
[* 4] In the affidavit in support of the search warrant, Detective Alonso stated he was informed by Detective Brian Ramos that the publicly accessible parts of the subject Facebook account shows a photograph of the defendant and the name "Asson fire Marcell." Detective Alonso stated that Detective Ramos also informed him that the subject Instagram account depicted what appeared to be a photograph of the defendant. Detective Alonso stated that he was informed by Detective James Normile that one of the subject email accounts was attached to the subject Facebook account. Detective Alonso stated that he was informed by Detective Ortiz that the second subject email account was created by the computer recovered pursuant to the search warrant of Apartment 12G signed by the Honorable Judge Ingram on April 9, 2014. Furthermore, Detective Alonso was informed by the official records of the New York City Fire Department that on or about December of 2010, the defendant sprayed a content of an aerosol can onto a lit lighter causing a fireball effect. Detective Alonso further stated that during the execution of the search warrant of Apartment 12G, he observed a number of burn marks on the walls of the defendant's bedroom. Detective Alonso was informed by Fire Marshal Ramos that based on his training and experience, individuals curious and fascinated with fires are known to memorialize their actions by recording images of fires using digital devices, uploading them and sharing them via the internet, email and social media. Lastly, this court examined in camera the search warrant signed by the Honorable Judge Michael Gary on May 13, 2014 and Detective Gilberto Alonso's affidavit in support of the search warrant. The target was one of the email accounts for which a search warrant was signed on April 25, 2014 by the Honorable Judge Gary. Detective Alonso stated that he was informed by AOL, Inc. that the previous search warrant could not be executed because it was directed to "America Online," whose current 4
[* 5] corporate name is AOL, Inc. Detective Alonso's affidavit in support of the April 25, 2014 warrant was incorporated into this application. As each judge had the opportunity to determine, face-to-face, whether there was sufficient basis to issue the search warrant, this court does not need to make any further determination. People v Taylor, 73 NY2d 683 (1989); People v Serrano, 93 NY2d 73 (1999). In any event, this court is satisfied from examining the affidavits in support of the search warrant applications that there was probable cause to issue each search warrant. In addition, this court finds that none of the search warrants contained perjured statements by a public servant. Furthermore, this court is satisfied that the search warrant was not based on stale information. Wherefore, the defendant's motion to controvert the search warrant is denied. The foregoing constitutes the decision, opinion and order of this court. Dated: Brooklyn, New York June 9, 2015 5