County Court, Erie County, September 23, 2023

Robert Ross Fogg for defendant.

John J. Flynn, District Attorney (Nicholas Bussi of counsel), for the People.

On June 1, 2023, defendant was arraigned before this court on an indictment charging him with criminal possession of a controlled substance in the third degree, in violation of Penal Law § 220.16 (12). In his omnibus motion dated July 20, 2023, defendant requested dismissal of the indictment; suppression of physical evidence; a Darden/Franks hearing; a Huntley hearing; a Wade hearing; a Sandoval hearing; Brady material; additional discovery and leave to file additional motions. The People filed an answering affidavit with the court on August 17, 2023.

After discussing the issues raised in the motion papers during an August 18, 2023 appearance, the court invited the parties to file any supplemental written arguments they wished the court to consider relating to the defendant's request for suppression of the physical evidence found during the execution of a temporary extreme risk protection order (TERPO). The People have provided the court with a signed copy of the TERPO application, but no other supplemental written argument. Upon review of the motion papers, the signed TERPO application, the supporting deposition of Akiesha Hernandez, the in camera testimony of Det. David Schneider, the signed TERPO and the arguments of the parties, this court finds that the TERPO does not comply with CPL article 690 and grants the defendant's motion to suppress the physical evidence seized and the statements made by the defendant during the execution of the TERPO.

The defendant challenges the search of his home pursuant to the TERPO and asks for suppression of the evidence since it was not searched pursuant to a valid search warrant. Additionally, he requests a Franks/Darden hearing. The People contend that the defendant has not set forth sworn allegations of fact establishing a basis for suppression and that there is no basis for a Franks or Darden hearing since the TERPO application was based on the sworn complaint of a known and identified individual in addition to the in camera sworn testimony of the detective applying for the TERPO. This court agrees that neither{**81 Misc 3d at 1044} a Franks or Darden hearing is appropriate here and denies defendant's request for such hearings. However, a review of the TERPO by this court is appropriate in the same way as a search warrant review.

Extreme risk protection orders pursuant to CPLR article 63-A are a civil remedy prohibiting a person from purchasing, possessing, or attempting to purchase or possess a firearm, rifle, or shotgun when there is credible evidence that an individual is likely to engage in conduct that would result in serious harm to him/herself or others as defined by Mental Hygiene Law § 9.39 governing emergency admissions for immediate observation, care, and treatment. Such orders are intended to address and prevent gun violence by an individual suffering from mental health or emotional issues.

Pursuant to the CPLR a petitioner, including a police officer, may apply to a Supreme Court Justice for a temporary extreme risk protection order (TERPO) directing an individual to not purchase, possess or attempt to purchase or possess a firearm, rifle, or shotgun while the order is in effect and requires the individual to surrender any firearm, rifle, or shotgun to law enforcement. Prior to the issuance of a TERPO, the justice must make a finding that there is probable cause to believe that the individual is likely to engage in conduct that would result in serious harm to him/herself or others based upon the sworn application of an authorized petitioner accompanied by supporting documentation setting forth sufficient facts and circumstances to justify such a finding (CPLR 6342). "As part of the order, the court may also direct a police officer to search for firearms, rifles and shotguns in the respondent's possession in a manner consistent with the procedures of article six hundred ninety of the criminal procedure law" (CPLR 6342 [8]).

Criminal Procedure Law article 690 codifies the NYS requirements for the issuance and execution of a search warrant consistent with the requirements of the Federal and State Constitutions.

"The Fourth Amendment to the Constitution of the United States provides that: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants 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{**81 Misc 3d at 1045} seized' " (United States v Galpin, 720 F3d 436, 445 [2d Cir 2013], citing US Const Amend IV; see also NY Const, art I, § 12).

Pursuant to CPL 690.10, property is subject to seizure if there is probable cause to believe that it is stolen, is unlawfully possessed, has been used in or is possessed for the purpose of being used to commit or conceal a crime or is evidence of a crime. Additionally, only a designated or described place or premises, a designated or described vehicle, and a designated or described person may be searched pursuant to CPL 690.15. The focus of article 690 of the CPL is criminality and securing the evidence of it consistent with the specific and particularized constitutional requirements.

Thus, the purpose of a TERPO and a search warrant are decidedly different. The plain language of CPLR 6342 (8) recognizes the different purposes and standards by adding the [*3]permissive language that a court "may also" direct a search pursuant to CPL article 690 beyond the individual's voluntary surrender, the plain view observation or other lawful discovery of firearms, rifles, and shotguns. When directing such a search the application and TERPO must fully comply with the requirements for a search warrant to be constitutional and support a criminal prosecution.

CPL 690.35 requires that a search warrant application be written, be subscribed and sworn by a public servant and contain the name of the court and name and title of the applicant, a statement that there is reasonable cause to believe that certain property may be found in a designated place, vehicle or on a person, allegations of fact supporting such a statement based on personal knowledge of the applicant or upon information and belief as long as the basis is identified, and a request for a search warrant directing the search for and seizure of the property or person in question. An application may also contain a request for an anytime warrant with a statement of grounds that there is reasonable cause to believe that it cannot be executed between 6:00 a.m. and 9:00 p.m. or that the property will be destroyed. Requests for a no-knock warrant must be supported by allegations of fact.

The form and content of a search warrant must contain a description of the property sought, a description of the place, premises, or persons to be searched by means of address, ownership, name, or any other means essential to identification, direction as to time of execution, direction as to no-knock, and direction as to the warrant return. (CPL 690.45.){**81 Misc 3d at 1046}

Central to the validity of a warrant is the particularity with which it describes the places, vehicles, and persons to be searched. It "must be specific enough to leave no discretion to the executing officer" (People v Brown, 96 NY2d 80, 84 [2001] [internal quotation marks omitted]; People v Gordon, 36 NY3d 420, 429 [2021]). There are three components to the particularity requirement. "First, a warrant must identify the specific offense for which the police have established probable cause." (Galpin at 445 [emphasis added].) Absent an indication on the face of the warrant telling the searching officers the crime for which the search was authorized it will be considered overbroad. "Second, a warrant must describe the place to be searched" with particularity (Galpin at 445-446). "Third, the warrant must specify the items to be seized by their relation to designated crimes." (Galpin at 446 [internal quotation marks omitted].)

This three-part test ensures that general searches are not authorized and prevents the seizure of one item under a warrant describing another. The expectation is that the descriptive facts typically uncovered during an investigation would be included in the warrant so that the invasion of a suspect's constitutional right to privacy is limited to what is necessary under the circumstances.

In reviewing the standard "Application for a Temporary Extreme Risk Protection Order" and the order itself, the form creates space for and accounts for the requirements of CPL article 690. However, the validity of the application and the order are dependent on how those forms are completed. In this case, the written application was initialed and sworn to on December 28, 2022, it was filed with the court on January 3, 2023, and in camera testimony was taken by the court. A review of the application, in camera record, and order reveals that they are not in compliance with the requirements of CPL article 690.

The petitioner is identified as "Town of Amherst Police" and the box for "Police Officer" is checked. However, nowhere in the application does it identify the name and title of the applicant. It is sworn to and signed with initials and a number, presumably a badge number, but the identity and title of the applicant is not discernible on the face of the application. The [*4]respondent who is the subject of the TERPO is identified as only A.O., Jr. There is no date of birth or further description regarding his age, weight, build, hairstyle, or ethnicity. There is a location{**81 Misc 3d at 1047} identified by an address but no description of the structure at that address such as the size or color of the structure or whether it is a commercial location or a single or multiple family residence. No other identifying characteristics were provided for the defendant or the address during the in camera examination of the applicant.

The application alleges an act of menacing with a long gun described as an AR-15 in a dark SUV in the attached statement from the victim/witness. However, the portion of the application which asks the applicant to "be as specific as possible regarding the description and location of the weapons" merely has a single circle next to "rifle" darkened. No further description or classification of the weapon is offered. The application further requests permission to search two vehicles identified by license plate numbers only on the basis that "both vehicles are possibly the vehicle used in the act of menacing," despite the witness statement specifically identifying only one vehicle, a dark SUV. The in camera testimony of the applicant reflects that they knew the make, model and registration of each vehicle and stated the reason for searching the second vehicle, a Honda Civic, registered to the defendant's wife was because "he might try to hide [the weapon] when he realizes we're there."

The applicant also relayed to the court that an incident occurred in Amherst where the defendant was accused of driving by the house of the victim/witness and pointing a long gun at them and threatening them over the telephone. The detective goes on to relate that through their investigation they have been out to the defendant's home and spoken with his wife. The defendant has contacted them at their request and come into the station for an interview. The defendant provided the police with some information which they investigated before reinterviewing the defendant again. The detective testified that once the defendant refused to continue speaking with them, they decided to apply for the TERPO.

The application further requests an "anytime" warrant because the "Def. frequently out of the home." This statement does not speak to why the warrant should be executed after 9:00 p.m. or before 6:00 a.m. Additionally, individuals that are the subject of a TERPO are referred to as "Respondent" (CPLR 6340 [3]) not defendant or "Def."

The court found that the petitioner met the threshold that the defendant presented "a risk to others, their health and {**81 Misc 3d at 1048}safety" and granted the TERPO. The order references the application, supporting documentation and sworn testimony without specifically identifying the documents and does not incorporate them into the order. The findings of fact and conclusions of law written in by the court read, "respondent presents as a risk of harm to self or others." There is no mention of a specific criminal offense. The order directs the search for firearms, rifles, and shotguns and of the person of A.O., Jr., which notably was not requested in the application. The order further directs the search of the premises identified only by a street address, without any further description, and a search of the two vehicles, despite there being no indication that the Honda Civic was involved in the incident. The order allows for the warrant to be executed outside the hours of 6:00 a.m. and 9:00 p.m. even though the defendant had been responsive to police requests and inquiries on more than one occasion.

This order is overbroad and lacks particularity. It does not identify the specific offense for which the police have established probable cause, it does not describe the place to be searched and it does not specify the items to be seized by their relation to a designated crime (see Galpin at 445-446). While the application provides slightly more information it also [*5]lacks sufficient particularity to satisfy the requirements of CPL article 690 and the Federal and State Constitutions. Regardless, the information in the application and sworn testimony cannot be considered when reviewing this order since the order "contained no language incorporating any other documents or facts" (People v Saeli, 219 AD3d 1122, 1124 [4th Dept 2023]).

Accordingly, this order, a civil remedy, may not be used to form the basis of this criminal prosecution since it fails to meet the necessary requirements of the Constitution and the CPL. The evidence discovered during this search is suppressed.

In his omnibus motion defendant requested an order suppressing the People's use of his statement to officers that the cocaine found in a Beats headphone case in a closet was recently purchased and for personal use. The moving papers are sufficient to warrant a hearing pursuant to CPL 710.60 and People v Huntley (15 NY2d 72 [1965]); however, given this court's conclusion regarding the legality of the search these statements are suppressed as fruits of the unconstitutional search (People v Betsey-Jones, 203 AD3d 1688 [4th Dept 2022]; see People v Milaski, 62 NY2d 147, 156 [1984]).{**81 Misc 3d at 1049}

Defendant's request for a Wade hearing is hereby denied as there was no CPL 710.30 notification of the intent to use any police arranged identification testimony against the defendant at trial. The People are precluded from introducing any police arranged identification testimony not noticed pursuant to CPL 710.30.

Defendant has requested advanced rulings with respect to Sandoval. The People have consented to a Sandoval hearing, and one shall be scheduled prior to trial, should a hearing be necessary.

Defendant has moved for inspection of the grand jury minutes and dismissal of the indictment on the grounds that the evidence before the grand jury was legally insufficient and the grand jury proceedings were defective. The court has reviewed the grand jury minutes and finds that the evidence before the grand jury was legally sufficient, and the proceedings were not defective. Defendant's motion for dismissal of the indictment is hereby denied.

Under Brady, the People are required to disclose, in advance of trial, evidence which is favorable to the accused. (Brady v Maryland, 373 US 83 [1963].) Since the enactment of CPL article 245, the People are required to turn over what is commonly referred to as Brady material expeditiously upon its receipt without delay and it must be reflected in the COC (certificate of compliance) within 20-35 days of arraignment, depending on the defendant's custody status (CPL 245.10 [1] [a] [i], [ii]; 245.20 [1] [k]). CPL 245.20 (1) (k) defines Brady material to include

"[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a{**81 Misc 3d at 1050} testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment."

Provision of this material to the defense must be memorialized in the People's COC and is a precursor to the filing of their statement of readiness.

In their response to the defendant's omnibus motion the People acknowledge their obligations under Brady, specifically delineate the evidence/documents they have provided and advise they will continue to comply. Should any specific instances of alleged Brady violations be brought to the attention of the court, they will be ruled on accordingly.

Defendant has requested additional discovery; however, the People have filed with the court a certificate of compliance with CPL article 245 and have acknowledged their ongoing obligation to turn over all discoverable material and file additional certificates of compliance as warranted. Pursuant to CPL article 245 this court orders defense counsel and the People to promptly confer with one another regarding any potential discovery issues and to bring them to the court's attention if unable to resolve.

Accordingly, the defendant's motion to suppress the physical evidence is granted; the defendant's motion to suppress his statements is granted; the defendant's motion for a Wade hearing is denied; the defendant's motion for a Sandoval hearing is granted; and the defendant's motion for a dismissal of the indictment is denied.