Supreme Court, Richmond County, March 22, 2023

Twyla Carter, The Legal Aid Society, Staten Island (Stephanie Pope of counsel), for defendant.

Michael E. McMahon, District Attorney, Staten Island (Travis Atkinson of counsel), for the People.

Defendant's motion to controvert the search warrant in the instant case is decided as follows:

Defendant filed a motion to controvert a search warrant, pursuant to CPL articles 690 and 710, requesting suppression of evidence obtained pursuant to the search warrant on several grounds, including that the warrant was not supported by sufficient case-specific factual allegations establishing probable cause. Defendant's motion is granted, in part.

The search warrant at issue here was granted with respect to the search and seizure of:

"evidence of the Assault of Anthony Williams on June 26, 2022, in the vicinity of Vanderbilt Avenue and Osgood Avenue, including all clothing worn during the commission of said offense, including but not limited to the jogger pants, shoes, and gloves, located in a bag, of Eric Vergara and a black Android vouchered as item No.1 under New York City Police Department property clerk invoice number 5000211025, belonging to Eric Vergara and its contents for evidence of an assault; including all information and files contained in the cell phone and phone memory, etc."

According to the application in support of said search warrant, in sum, on June 26, 2022, at approximately 4 a.m., in the{**79 Misc 3d at 247} vicinity of Vanderbilt Avenue and Osgood Avenue, defendant was depicted on surveillance video approaching a vehicle. Defendant was observed wearing "joggers" with one black leg and one white leg. Upon defendant's approach of the vehicle, a male exited the vehicle and a physical altercation ensued, during which defendant kicked and struck the male individual multiple times about his head while he appeared unconscious on the [*2]ground. Defendant was later identified in a photo array by one of the police officers who responded to the assault.

Two days later, on June 28, 2022, at approximately 7 p.m., defendant was read his Miranda rights and agreed to speak with Detective Omar Delcid. Det. Delcid observed that defendant was wearing joggers with one black leg and one white leg during the interview. Defendant admitted to being involved in the altercation. Defendant further admitted that at the time of the interview, he was wearing the same pants and shoes as when he was involved in the altercation. Prior to the altercation, defendant admitted he put gloves on, which he also had on him, in a bag, during the interview. The application goes on to state that based upon the detective's training and experience, the clothing may contain further evidence, such as DNA and/or blood.

The application next states that there is reasonable cause to believe that evidence of the assault may be found on a cell phone belonging to defendant, vouchered and in the custody of the NYPD. The application then contains several paragraphs describing generally how cell phones work, and how information is stored in cell phones and on SIM cards.

Defendant's first contention is that there was no probable cause for the issuance of this search warrant. With respect to the cell phone, this court agrees. To establish probable cause, a search warrant application must provide sufficient information "to support a reasonable belief that evidence of a crime may be found in a certain place" (People v Augustus, 163 AD3d 981, 982 [2d Dept 2018]; People v Murray, 136 AD3d 714, 714 [2d Dept 2016], quoting People v McCulloch, 226 AD2d 848, 849 [3d Dept 1996]).

Case law is clear that New York courts require a nexus between the alleged criminal activity and a cell phone to find probable cause. (See People v Chen, 72 Misc 3d 1220[A], 2021 NY Slip Op 50808[U] [Sup Ct, Kings County 2021].) The Chen court goes through great lengths to discuss how courts have found a nexus between the crime and the target cell phone,{**79 Misc 3d at 248} such as looking to evidence in the warrant application that a defendant used the target cell phone to threaten or communicate with the victim (see People v Sime, 61 Misc 3d 896 [Crim Ct, NY County 2018]; People v English, 52 Misc 3d 318 [Sup Ct, Bronx County 2016]); or evidence of defendant using the target cell phone shortly after commission of the crime (see People v Phipps, 8 Misc 3d 1008[A], 2005 NY Slip Op 50983[U] [Sup Ct, Kings County 2005]; People v Frederick, 52 Misc 3d 648 [Sup Ct, Kings County 2016]).

In Chen, video surveillance from the date of the crime showed defendant "merely looking at a cell phone" without any claim the phone was used for the purpose of communicating with another person. Approximately seven days later, defendant was arrested in possession of a cell phone, which was the target of the search warrant. There, the search warrant application did not contain any description of the cell phone alleged to have been used by defendant at the time of the charged crime and was therefore found to be devoid of factual allegations linking the cell phone in the defendant's possession at the time of the arrest to the cell phone the People allege defendant used immediately prior to the crime. The Chen court found the People failed to establish a nexus, supported by probable cause, that the cell phone recovered was the cell phone used at the time they allege defendant committed the charged crimes, and therefore could not satisfy the required element of probable cause to believe evidence of the crime will be found in the location to be searched (see Chen, 2021 NY Slip Op 50808[U], *2-3).

The search warrant application at issue before this court is similarly devoid of any factual allegations linking the cell phone, presumably in defendant's possession at the time of his arrest, to the charged crime. The warrant application does not allege that defendant used the cell [*3]phone at all during, or in close temporal proximity to, the charged crime. Nor does it even state that defendant had the phone in his possession at the time of the commission of the assault. There is absolutely nothing in the warrant application linking the cell phone to the commission of the crime; thus, the People have not satisfied the required element of probable cause to believe evidence of the crime will be found in the location to be searched.

The People rely on People v Oliveira (2 AD3d 122, 123 [1st Dept 2003]) for the proposition that probable cause can be established by a reasonable inference from a warrant application's{**79 Misc 3d at 249} description of the commission of the crimes under investigation and claim that Phipps extended this principle to cell phones belonging to defendant. In Phipps, although the affidavit in support of a search warrant failed to identify the phone to be searched as the same phone used in connection with a robbery, the relevance of the cell phone was clearly established during the issuing judge's examination of the detective and informant (see Phipps, 2005 NY Slip Op 50983[U], *3). Also, there was reasonable cause to believe that the target phone contained a list of telephone numbers that could lead to identifying and locating the unapprehended perpetrators. The Phipps court then relied on Oliveira to find that the issuing court properly inferred that information regarding the two unapprehended associates could be recovered from the phone possessed by defendant. (See Phipps at *4.)

The facts of the Phipps case are clearly distinguishable from the facts of the case before us here. Here, there was no examination conducted of the affiant, or an informant, which could save this warrant. There was no information provided as to any unapprehended accomplices. Here, we merely have a cell phone, that was presumably recovered two days after the commission of a crime, from defendant. Without more, it cannot be said that the People have met their burden of establishing probable cause to search the target cell phone.

This court does, however, find that probable cause existed with respect to "all clothing worn during the commission of said offense, including but not limited to the jogger pants, shoes, and gloves, located in a bag, of Eric Vergara." Furthermore, this portion of the warrant was not overbroad, and was sufficiently particularized as to justify its issuance. When a search warrant is partially but not wholly invalid, only the fruits of the invalid portion need be suppressed. (People v Brown, 96 NY2d 80 [2001]; People v Hansen, 38 NY2d 17 [1975].)

Defendant's motion to controvert the search warrant is granted with respect to the cell phone, and any evidence recovered from said cell phone is suppressed. As such, the court will not reach defendant's remaining contentions as they relate to the cell phone portion of the warrant.