DECISION AND ORDER I. By a motion dated and filed with the Court on April 26, 2019 (“Motion to Controvert”), the Defendant moved to controvert the search warrant (“Search Warrant”) and to suppress all evidence seized pursuant to its execution at XXX Glenmore Avenue, Brooklyn, New York (“Location”) on the grounds that the search warrant affidavit (“Affidavit”) was not supported by probable cause. Specifically, the Defendant challenges the validity of the Search Warrant arguing that (1) the warrant is facially invalid in that (a) the Search Warrant was issued on less than probable cause; and (b) the basis of knowledge and the reliability of the informant was not established in violation of Aguilar v. Texas, 378 US 108 (1964) and Spinelli v. United States, 393 US 410 (1969) (collectively, “Aguilar-Spinelli”); and (2) the “no-knock” provision of the Search Warrant was unjustified. The Defendant further moves for a Darden hearing (“Darden Hearing”) pursuant to People v. Darden, 34 NY2d 177 (1974) and for a copy of the unredacted Affidavit. The People have submitted an opposition (“Opposition Motion”) dated May 23, 2019 and filed with the Court on May 24, 2019 to Defendant’s Motion to Controvert. II. As to Defendant’s motion for the unredacted copy of the Affidavit, on February 28, 2019, the Hon. Joseph McCormack rendered an order (“Order”) granting People’s motion for a protective order and directed the People to provide the Defendant with a copy of the redacted version of the Affidavit within seven (7) days. On April 9, 2019, the People complied with said Order and served said copy on defense counsel. In the Motion to Controvert, the Defendant renewed his application to compel production of the unredacted Affidavit. As the Defendant has not provided this Court with any new facts or changed circumstances, this part of Defendant’s motion for the unredacted Affidavit is denied. Defense counsel also requested to review the unredacted search warrant material under seal pursuant to Defendant’s authorization (Mot. to Controvert at 8). Defense counsel’s such application is denied. III. With respect to the motion to controvert the Search Warrant, the Defendant argued that the People have failed to make any allegation that the Defendant “had any connection to the [Location]…other than mere presence” (Mot. to Controvert at 4). While one’s mere presence at any premises where contraband is found is insufficient to prove possession elements at trial (People v. Edwards, 206 AD2d 597, 597 [3d Dept 1994]), the Defendant here has failed to establish standing to challenge the evidence recovered pursuant to the execution of the Search Warrant. Indeed, standing is a fundamental and threshold issue which a movant must address. The United States Supreme Court and the New York State Court of Appeals have steadfastly required a Defendant to establish his standing to challenge the seizure of tangible evidence by demonstrating a reasonable expectation of privacy in the premises searched or the property seized. (Rakas v. Illinois, 439 US 128, 129 [1978]; United States v. Salvucci, 448 US 83, 84 [1980]; People v. Ponder, 54 NY2d 160, 166 [1981]; People v. Rodriguez, 69 NY2d 159, 161 [1987]; People v. Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v. Wesley, 73 NY2d 351, 374 [1989]; People v. Scully, 14 NY3d 861, 864 [2010].) The burden of establishing standing is borne solely by the Defendant who seeks to challenge the search or seizure at issue (Ponder, 54 NY2d at 163; Rodriguez, 69 NY2d at 163). Such a showing is necessary because a “person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed” (Rakas, 439 US at 134). Moreover, the Defendant bears the burden of establishing that his own Fourth Amendment rights were violated by the challenged search and seizure (id. at 131). Here, the Defendant never addressed this issue. Accordingly, Defendant’s Motion to Controvert is procedurally barred. IV. In any event, although the Defendant failed to establish standing in his Motion to Controvert, in the interest of judicial economy and to expedite matters, this Court has nevertheless considered Defendant’s motion on its merits. Here, the search warrant application was issued upon the affidavit of Det. Daniel Molinski of the New York City Police Department. The Affidavit indicated that on several occasions a confidential informant bought crack cocaine from the Location. The reliability of the confidential informant’s information was sufficiently demonstrated by personal observations made by the confidential informant and communicated first to Det. Molinski and then by Det. Molinski to Judge Laurie Peterson (“Issuing Judge”). This Court finds that the affidavit submitted by Det. Molinski satisfied the two-prong test. The veracity prong has been met in light of the fact that the confidential informant, in the past, had given Det. Molinski information which led to the arrest of individuals for the possession of controlled substances. Having provided reliable information on even one occasion is a sufficient track record for most judges (People v. Walters, 187 AD2d 472, 472 [2d Dept 1992]). Contrary to Defendant’s contention, there is no rule that an informant’s reliability can only be established if information previously provided has resulted in a conviction (see People v. West, 92 AD2d 620 [3d Dept 1983]; People v. Calise, 256 AD2d 64 [1st Dept 1998], quoting People v. Whitt, 203 AD2d 606 [2d Dept 1994]). Court in Tyrell stated that “there is no per se requirement that [information provided by the informant] must have led to a conviction or have been independently verified in order for the informant to be considered reliable” (People v. Tyrell, 248 AD2d 747, 748 [3d Dept 1998]). Here, the confidential informant’s reliability was sufficiently demonstrated to the Issuing Judge. The basis of knowledge test has similarly been satisfied since the confidential informant set out for Det. Molinski the underlying circumstances and the specific dates that the alleged illegal activities were taking place (People v. Hanlon, 36 NY2d 549 [1975]). In addition, Det. Molinski personally made an independent verification of the Location. These allegations, taken together, demonstrate the reliability of the information. V. As to Defendant’s motion for a Darden Hearing, the People contend that the “the independent observations of Detective Molinski are sufficient to establish probable cause, rendering a hearing unnecessary” (Opposition Mot. at 14). Here, Det. Molinski searched the confidential informant before and after the controlled buys; observed the confidential informant entered and exited the Location; and thereafter the confidential informant handed him narcotics. Contrary to People’s contention, Det. Molinski’s observations as to what transpired before and after the alleged drug sale were insufficient evidence to establish probable cause without the information provided by the confidential informant as to what had transpired between the confidential informant and the alleged seller of the narcotics at the Location. Accordingly, Defendant’s motion for a Darden Hearing is granted, provided that the Defendant is able to establish standing on the next adjourn date on June 17, 2019 as originally scheduled or within seven (7) days of the issuance of this Court’s decision and order. The Defendant may submit questions, with the confirmation of the establishment of standing, for the Court to pose to the informant during its ex parte examination. VI. Defendant’s argument that the information provided by the confidential informant might have been stale at the time of the search warrant application is without merit. Although the Search Warrant ordered by the Issuing Judge was not dated, based on the minutes of the search warrant application, the Court is satisfied that the Search Warrant was issued on the same day of the search warrant application and at the same time of the day, “12:39 PM.” Having reviewed the unredacted search warrant application, the last incident occurred within a short period of time prior to the application of the Search Warrant. In addition, the Search Warrant was timely executed within the 10-day period permitted by law (CPL 690.30 [1]). The Court also finds that the “no-knock” provision in the Search Warrant was justified by the evidence presented to the Issuing Judge because the type of evidence to be seized could be easily destroyed or removed and safety may be endangered by giving notice (CPL 690.35 [4] [b]). VII. Accordingly, Defendant’s Motion to Controvert is denied; provided that 1. A Darden hearing is granted if the Defendant is able to establish standing by the next adjournment on June 17, 2019 as originally scheduled or within seven (7) days of the issuance of this Court’s decision and order. 2. Defendant’s motion seeking the right to make further motions is granted to the extent afforded by CPL 255.20 (3). This constitutes the DECISION and ORDER of the Court. Dated: June 27, 2019 Kings County, New York
