Defendant, Patrick Watson, has submitted an omnibus motion filed on December 14, 2018, seeking: Discovery and a Bill of Particulars; inspection and release of the Grand Jury Minutes and dismissal or reduction of the indictment; suppression of evidence; preclusion of evidence, Brady material; preservation and production of all radio and other police recorded communications; and reservation of the right to file further motions. The People’s response, filed January 7, 2019 consents to some of the relief sought and opposes other relief. The court decides the motion as follows.DISCOVERY AND BILL OF PARTICULARSThe branch of the defendant’s motion seeking a Bill of Particulars and Discovery is granted to the extent provided by the People pursuant to CPL 240.20 and CPL 200.95.INSPECTION AND DISMISSAL OR REDUCTIONDefendant’s motion to inspect the Grand Jury minutes is granted. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to the requirements set forth in CPL 200.50. The instructions were not defective as a matter of law, the proceedings are proper, and the evidence before the Grand Jury was sufficient to support all the counts in the indictment. Defendant’s motion to release the Grand Jury minutes is denied since release of the Grand Jury minutes is not necessary to assist this court in determining defendant’s motion to reduce or dismiss the indictment.MOTIONS TO SUPPRESSThe defendant’s motion to suppress any physical evidence and the post-seizure observations is granted to the extent that a Mapp/Dunaway is ordered. The defendant’s motion to suppress the videotape of the administration of the breath test and any physical coordination tests is denied as moot in that the defendant did not take the breathalyzer test and any physical coordination tests. The defendant’s request for the People to produce at the hearing the property seized from the defendant is denied. (cf. People v. Robinson, 118 AD2d 516 [1st Dept 1986].)The defendant’s motion to suppress his statements is granted to the extent that a Huntley/Dunaway hearing is ordered. At that hearing, the motion court to determine whether the defendant’s statements were made in violation of his Miranda rights and whether the statements were involuntarily made within the meaning of CPL 60.45(2)(b).MOTION TO CONTROVERT SEARCH WARRANTIn the indictment, the defendant is charged with two counts each of driving while intoxicated (Vehicle and Traffic Law §1192 [2], [3]) and one count each of aggravated driving while intoxicated (Vehicle and Traffic Law §1192[2-a][a]) and driving while ability impaired (Vehicle and Traffic Law §1192 [1]). The counts of driving while intoxicated (Vehicle and Traffic Law §1192[2]) and aggravated driving while intoxicated are based upon the testing of defendant’s blood sample which was obtained by police pursuant to the execution of a search warrant.1In support of the search warrant to obtain defendant’s blood sample the underlying affidavit set forth facts that show on April 28, 2018, Police Officer Anna Loboda responded to a motor vehicle accident on Thursby Avenue in Queens County. There she saw the defendant leaning against a 2007 GMC Sierra which had damage to the front passenger side of the vehicle and saw damage to two other parked vehicles, a 2007 Hyundai and a 2008. Police Officer Loboda also saw that the 2007 GMC Sierra’s engine was running and that the keys were in the ignition.After speaking with the defendant, she observed him to have bloodshot and watery eyes, flushed face, slurred speech and to be unsteady on his feet. She also smelled a strong odor of alcohol emanating from the defendant’s breath. The defendant told Police Officer Loboda that he was driving his work vehicle home and was headed home after work. The defendant was arrested and taken to the 112th precinct where the defendant refused to exit the police vehicle. The defendant was then transported to Long Island Jewish-Forest Hills Hospital and at the hospital, was offered to take a blood test but refused to do so. A physician who treated the defendant informed Police Officer Loboda that a vial of the defendant’s blood had been taken for diagnostic purposes during the treatment of the defendant and the blood sample would not be released without a warrant.In the affidavit, Police Officer Loboda stated that she is seeking that physical evidence and the identity of the individual who drew the blood from the defendant.The defendant moves to controvert the search warrant on the ground that the search warrant that was issued contains numerous errors which renders it defective. In their response, the People contend that the defendant has no standing to challenge the issuance of the search warrant because the defendant does not allege any false material fact in the affidavit. The People also contend that any errors contained in the warrant are typographical errors and do not invalidate the finding of probable cause by the issuing judge.Generally, a warrant to search a place for property is to prevent the police officer from using his discretion in the seizure of the property during the search of the place.2 As the Supreme Court of the United States stated in Marron v. United States3, 275 US 192, 195-196 (1927) that:“The Fourth Amendment declares that the right to be secure against unreasonable searches shall not be violated, and it further declares that: ‘No warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.’…The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”The Court of Appeals addressed in People v. Nieves, 36 NY2d 396 (1975) the degree to which the description must clearly and accurately describe the person or places or things to be seized or searched. The court in Nieves said “from the standpoint of common sense (citations omitted), that the descriptions in the warrant and its supporting affidavits be sufficiently definite to enable the searcher to identify the persons, places or things that the Magistrate has previously determined should be searched or seized.” (Id. at 401)In this case, the Search Warrant in relevant part reads as follows:“Proof by affidavit and/or oral deposition of a person known to this court, having been made this day before me by Police Officer ANNA LOBODA, Shield No.28735, of the 100th Precinct, that there is reasonable cause to believe that certain property, to wit: evidence that the defendant was operating a motor vehicle with a blood alcohol level that exceeded the legal limit, is located at the property, to wit: Blood, and any containers containing blood, drawn from Patrick Watson, DOB XX/XX/XXXX, on or about January 1, 2017, located at Jamaica Hospital Medical Center, 8900 Van Wyck Exp., Richmond Hill, Queens County, New York, as well as the identity of the individual who withdrew said sample, and is stolen or unlawfully possessed or has been used, or is possessed for the purpose of being used, to commit or conceal the commission of an offense or constitutes evidence or tends to demonstrate that an offense was committed.YOU ARE THEREFORE COMMANDED between the hours of 6:00 a.m. and 9:00 p.m. to make an immediate search of the above-described premises and photograph, test and/or videotape the aforementioned property, to wit: Blood, and any containers blood, drawn from Samuel N. Pringle, DOB XX/XX/XXXX, on or about April 29, 2018, located at Long Island Jewish-Forest Hills Hospital,102-01 66th Road, Forest Hills, Queens County, New York as well as the identity of the individual who withdrew said sample, for evidence that the defendant was operating a motor vehicle with a blood alcohol level that exceeded the legal limit.”Guided by the principle set forth in Nieves, the first paragraph reciting reasonable cause to believe that the blood drawn from the defendant at Jamaica Hospital on or about January 1, 2017 will be evidence of an offense is false. The affidavit from Police Officer Loboda provided reasonable cause to believe that the defendant was operating a motor vehicle while intoxicated on April 28, 2018 and his blood was drawn at Long Island Jewish Forest Hills Hospital.The second paragraph which provides the description of the property which is to be seized is inconsistent as to the description contained in the affidavit. The search warrant as it reads permitted the police officer to seize the blood sample of Samuel N. Pringle.4People v. Lancoon, 76 Misc 2d 161 (Crim Ct, New York County 1973) is instructive. In Lancoon, the undercover police officer stated in the affidavit that he observed gambling activity in three separate premises and requested that the court issue search warrants for “gambling equipment, paraphernalia and gambling records”. The warrants, however, permitted the search for narcotics.5 The People claimed that the warrants were for gambling equipment and that the stenographer did not substitute gambling paraphernalia for narcotics and thus it was a mere typographical error. The court held that the warrant and the affidavit did not coincide; that the warrant did not relate to the affidavit and the defect in the warrant was not merely a technical one; and that the warrant authorized a search for property not mentioned in the affidavit. The court also held that “[i]t is as if there is no probable cause whatever to support the issuance of the warrant in question” and the search warrant did not contain a description of the property which was the subject of the search.As in Lancoon, the affidavit from Police Officer Loboda was seeking permission to seize the blood sample from the defendant and the warrant authorized the police to seize the blood sample of Samuel N. Pringle. The affidavit and the warrant do not relate to one another and the warrant authorized the seizure of property not named in the affidavit. Therefore the warrant did not contain a sufficient description of the property to be seized by the police nor probable cause to seize the blood sample from Samuel N. Pringle.For these reasons, the motion to controvert the search warrant is granted.PRECLUSION OF EVIDENCEThe defendant’s motion to preclude any unnoticed statements is denied as moot in that the People indicated that they do not intend to introduce any statements other than the statements contained in their notice filed with the court and served upon defense counsel at defendant’s arraignment on the indictment.The defendant’s motion to preclude any unnoticed identification evidence is denied as moot in that the People have not indicated that they intend to introduce testimony concerning any identification procedure involving the defendant.BRADY MATERIALAs to the demand for Brady material, the People are reminded of their continuing duty to provide evidence or information that is favorable to the defendant.SANDOVAL RELIEFThe defendant’s request for a Sandoval hearing is referred to the trial court. Disclosure of the prior bad act evidence which the People will seek to introduce at trial for purposes of impeaching defendant’s credibility, shall be made in accordance with the time frame set forth in CPL 240.43.PRESERVATION AND PRODUCTION OF ALL RADIO RUNS AND ANY OTHER POLICE RECORDED COMMUNICATIONSThe People are directed to preserve and turn over to the defendant a copy of any 911 telephone calls made by anyone connected to this matter. In addition, the People are directed to preserve and turn over to the defendant any police recorded radio communications related to this matter.LEAVE TO FILE FURTHER MOTIONSThe branch of the motion requesting leave to file additional motions is granted to the extent recognized by CPL 255.20(3).RECIPROCAL DISCOVERYThe People’s request for reciprocal discovery is granted pursuant to CPL §240.30.This constitutes the decision and order of the court.The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.January 14, 2019
