The People, Respondent,v.Dayshawn Crooks, Appellant.BriefN.Y.June 2, 2016 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DAYSHAWN CROOKS, Appellant. BRIEF FOR APPELLANT HUG LAW, PLLC Matthew C. Hug, Esq. Rensselaer Technology Park 105 Jordan Road Troy, New York 12180 T: (518) 283-3288 F: (518) 283-7649 Attorney for Appellant December 28, 2015 To Be Argued By: MATTHEW C. HUG Time Requested: 30 Minutes TABLE OF CONTENTS Preliminary Statement 1 Question Presented 2 Jurisdictional Statement 3 Statement of Facts 4 Argument 15 POINT I: THE LOWER COURT COMMITTED REVERSIBLE ERROR BY DENYING APPELLANT’S REQUEST FOR A DARDEN HEARING. 15 Conclusion 25 TABLE OF AUTHORITY People v. Anderson, 35 Misc.3d 1233(A) (2012) …………………. 17, 20-21 People v. Adrion, 82 N.Y.2d 628 (1993) ………………………… 15, 19 People v. Burks, 132 A.D.2d 604 (2nd Dept. 1987) …………… 17 People v. Darden, 34 N.Y.2d 177 (1974) ………………………… 15-16 People v. Edwards, 95 N.Y.2d 486 (2000) ………………………… 15 People v. Farrow, 98 N.Y.2d 629 (2002) ………………………… 17, 20 People v. Hamilton, 227 A.D.2d 669 (3rd Dept. 1996) …………… 22-23 People v. Johnson, 35 Misc.3d 1233(A) (Kings Co. 2012) ……. 17 PRELIMINARY STATEMENT On August 15, 2013, appellant, Dayshawn Crooks, was convicted, after trial of criminal possession of a controlled substance in the third degree (two counts), and was sentenced to eight years in prison followed by three years of post-release supervision. By Memorandum and Order, entered June 11, 2015, the Appellate Division, Third Department, affirmed appellant’s conviction finding, inter alia, that he was not entitled to a Darden hearing, and that its deprivation by the trial court was not erroneous. By permission of The Honorable Eugene M. Fahey (granted September 28, 2015) appeal is taken from said Memorandum and Order. Page of 1 25 QUESTION PRESENTED DID THE LOWER COURT COMMIT REVERSIBLE ERROR IN DENYING APPELLANT’S REQUEST FOR A DARDEN HEARING? YES. Page of 2 25 STATEMENT OF JURISDICTION Appellant appeals the judgment of conviction of County Court, Albany County (Ceresia, J.) and the Memorandum and Order of the New York State Supreme Court, Appellate Division, Third Department, and does so after having been granted leave to appeal by Hon. Eugene M. Fahey. The issue to be raised on appeal before this Court, relates to the lower court’s determinations that appellant was not entitled to a Darden hearing in advance of trial. This issue was preserved by appellant at both County Court (A. 013-022, 029-036) and at the Appellate Division, as seen by the fact that they addressed this issue in their Memorandum and Order. (A. 003-006). In this case, the issue of whether a Darden hearing should have been granted is a question of law, or at the very least, a mixed question of law and fact. Appellant was aggrieved by the decisions of the lower court, as he has been convicted of a felony, and is presently incarcerated as a result. Page of 3 25 STATEMENT OF FACTS INTRODUCTION In January 2013, appellant was charged by indictment with two counts of criminal possession of a controlled substance (Penal Law §§ 220.16[1], [12]) and two counts of criminally using drug paraphernalia (Penal Law §§ 220.50[2], [3]). (A. 009-012). The charges stemmed from the discovery of a quantity of crack-cocaine (among other things) during the execution of a search warrant at appellant’s residence in the City of Albany. Prior to trial, appellant’s request for a Darden hearing was denied, and following a Mapp hearing, his motion to suppress was also denied. (A. 029-036). Following his jury trial, appellant was found guilty of both counts of criminal possession of a controlled substance, and was thereafter sentenced — as a second felony offender — to an aggregate prison term of eight years followed by three years post-release supervision. (A. 122-133). The Appellate Division Third Department, rejected appellant’s argument Page of 4 25 that County Court erred by denying his request for a Darden hearing, and affirmed the judgment of conviction. (A. 002-006). This Court (Fahey, J.) granted leave to appeal. (A. 001). THE SEARCH WARRANT On November 23, 2012, Albany City Court (Carter, J.), signed a “no- knock” search warrant, authorizing the Albany Police Department to search the second floor apartment at Alexander Street — a multi-tenant building — in the City of Albany, and seize any cocaine, paraphernalia and any other evidence that could identify the defendant or establish that cocaine was possessed or being sold at the residence. (A. 042-043). The search warrant was based upon, and solely supported by, an affidavit executed by Albany Police Department Detective James Wood. (A. 044-053). THE SEARCH WARRANT APPLICATION Wood’s affidavit represented that a confidential informant (“CI”) had approached him with information that a male known as “Day Day” was Page of 5 25 selling cocaine in the City of Albany, and agreed to “make an electronically monitored purchase of crack cocaine”. (A. 046). The affidavit recounted that two controlled buy operations were conducted in November 2013. (A. 044-053). During the first operation, Wood affirmed that the CI was fitted with a “wire transmitter capable of sending live audio communications”, given a quantity of pre-recorded buy money, and directed to go to Alexander Street (appellant’s address) for the purpose of purchasing cocaine. (A. 046-047). Wood’s affidavit claimed that the CI was observed by a fellow officer enter Alexander Street. (A. 047). But, he also avowed that the details of the actual alleged sale came solely from the CI. (A. 044-049). To that end, Wood affirmed: “CI provided the following details regarding the purchase of crack cocaine from the target. The target opened the door and the CI entered the common hallway both walked to the second floor apartment. The target removed a large quantity of crack cocaine [redacted by prosecution]. The target then handed the Page of 6 25 CI the quantity from the scale and the CI handed the target the pre-recorded APD US currency in return.” (A. 047). According to Wood’s affidavit, the CI exited the apartment and walked back to the police officers while “under visual surveillance by [himself] and Detectives Vennard and Regan.” A sample of the material in the bag the CI handed to police tested positive for cocaine. (A. 047). Wood recounted that a second controlled buy operation occurred with the same CI. (A. 047). During this second operation, Wood represented that other police officers visually observed the CI walk to the pre-arranged location “where [he] exchanged the pre-recorded US currency with the target for a quantity of crack cocaine.” (A. 047). From there, “the CI walked back to the custody of CRU while under visual surveillance, making no stops or exchanges along the way.” (A. 047). The CI then tendered a quantity of cocaine to police. (A. 047). SEARCH WARRANT EXECUTED Page of 7 25 On November 30, 2012, Det. Wood and other members of the Albany Police Department executed the search warrant at appellant’s residence. (A. 071). Police later claimed that a bag of crack cocaine was found in the backyard after it had been thrown out a second floor window, along with a digital scale, a quantity of U.S. currency, plastic baggies, mail with appellant’s name on it and a piece of cardboard with “Day Day” written on it. (A. 108-113). FIRST DENIAL OF APPELLANT’S REQUEST FOR A DARDEN HEARING By omnibus motion, appellant sought, inter alia, a Darden hearing. (A. 013-022). In opposition to appellant’s request for a Darden hearing, the prosecutor represented to County Court that the police did not use a confidential informant. (A. 023-028). Because the prosecutor declared that confidential informants had not been used, County Court denied appellant’s request for a Darden hearing, but granted his request for a Mapp hearing. (A. 029-031). Page of 8 25 In advance of the Mapp hearing, the prosecutor informed County Court that a confidential informant had, in fact, been used by the police. (A. 054). The prosecutor excused his earlier misrepresentation as being an accidental miscommunication. (A. 054). Although the court determined that the prosecutor had not intentionally misrepresented the facts, it harbored significant concerns about its earlier denial of the motion for a Darden hearing, and stated: “it is just that once the Court had the chance this morning to review the actual search warrant application, specifically, the supporting affidavit, in which the confidential informant is relied upon by the police officer and is not named, the law is pretty clear that in that situation a defendant is entitled to a Darden hearing.” (A. 055). Nevertheless, the prosecutor continued to argue that a Darden hearing was unnecessary, and County Court reserved its decision. MAPP HEARING At the Mapp hearing, the People presented the testimony of Albany Police Detectives James Wood, Scott Gavigan and Brian Plante. Wood was Page of 9 25 the only witness that testified with respect to the information in the warrant application. Wood testified that the CI approached him, unsolicited, and offered information that a man named “Day Day” resided at Alexander Street in the City of Albany, was selling cocaine. (A. 059). Although the CI’s tip was unsolicited, it did not lack motivation, because he approached the police with the intention of securing a favorable 1 resolution of his own pending criminal charges. (A. 059). Wood acknowledged that he had never worked with this CI before, and did not know him. (A. 059, 062). He testified that the CI told him that he could purchase cocaine from “Day Day”, and agreed to participate in a controlled buy operation. (A. 060-061). With respect to the first controlled buy operation, Wood testified that his role was to listen to the real-time audio that was transmitted to him from the microphone that had been attached to the CI. The only first hand information Wood possessed with respect to this operation, was that The pronoun “he” is used in place of “he or she” simply for the sake of brevity, as the 1 gender of the CI (if he or she exists) is unknown. Page of 10 25 he overheard the CI talking with another person over the wire. Because the alleged transaction was said to have occurred inside of Alexander Street, no police officer visually observed it. In fact, no police officer involved in the operation even saw appellant that day. And, Wood testified he did not even see the CI go into the building. (A. 063). Thus, all of the information contained in the search warrant application that appellant sold cocaine to the CI during the first controlled buy could have only come from communications received from the CI after the operation concluded. The following week, the CI participated in a second controlled-buy operation. Again, the CI was wired with a microphone for the transmission of real-time audio. (A. 065-066). According to Wood, other officers saw appellant get into a van in front of his residence and drive off. (A. 066-067). During the operation, the CI was completely unobserved for a length of time. (A. 066-067). Wood did not visually observe any transaction, and he did not provide any direct Page of 11 25 testimony that any transaction was visually observed between appellant and the CI. (A. 70-71). The remainder of the Mapp hearing related to the execution of the search warrant. Aside from Wood, no other witness testified about the controlled buy operations with any specificity. In a written decision, County Court denied appellant’s motion to suppress, finding that the search warrant was based upon probable cause, and was validly executed. (A. 032-036). In addition, County Court held that a Darden hearing was unnecessary, opining that probable cause existed without reliance upon any communications received by the police from the confidential informant. (A. 032-036). TRIAL The People did not present the CI as a witness at trial, and his identity was never revealed. The People presented evidence that during the execution of the search warrant, a police officer observed a bag being tossed out of a second floor window. The bag was retrieved, and the Page of 12 25 substance contained therein tested positive for the presence of cocaine. The People also presented evidence that the police found plastic baggies, a scale, U.S. currency and mail addressed to appellant in the apartment. The jury found appellant guilty of both counts of criminal possession of a controlled substance in the third degree, but found him not guilty of both counts of criminally using drug paraphernalia. (A. 120-121). APPEAL On appeal to the Appellate Division, appellant argued, inter alia, that County Court committed reversible error by denying his request for a Darden hearing. In its Memorandum and Order, the Third Department held that “a Darden hearing was not necessary inasmuch as probable cause for the search warrant was established, in part, by the independent observations of the police.” (A. 003). In so finding, the Appellate Division found that these independent observations were: the monitoring of the live audio transmitter; the finding of the cocaine after each controlled buy operation, and that “at certain points during these transactions, Wood Page of 13 25 and/or another police officer were also able to visually observe the CI interacting with defendant.” (A. 003). Contrary to the Appellate Division’s finding, there was no visual observation of appellant during the first controlled buy operation. And, no police officer testified as to having personally observed appellant during the second operation. Only Wood offered testimony with respect to the second operation, and he admitted that police officers lost sight of the CI during the operation, and some other police officer (that remained unnamed) observed some kind of interaction — not a hand-to-hand transaction — between the CI and appellant. There was no testimony that anyone ever saw appellant engage in any hand-to-hand transaction. Based upon these findings, the Appellate Division affirmed the denial of appellant’s request for a Darden hearing. Page of 14 25 ARGUMENT THE LOWER COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT’S REQUEST FOR A DARDEN HEARING. Where information that has been derived from a confidential informant is necessary to establish probable cause for the issuance of a warrant, the People must produce the informant for an in camera inquiry upon request by the defendant. See, People v. Adrion, 82 N.Y.2d 628, 634 (1993); People v. Darden, 34 N.Y.2d 177 (1974). Stated differently, if “‘there is insufficient evidence to establish probable cause apart from the testimony of the arresting officer as to communications received from an informer,’ it would be ‘fair and wise’ for the People to ‘be required to make the informer available for interrogation before the Judge.’” People v. Edwards, 95 N.Y.2d 486, 492 (2000), quoting People v. Darden, 34 N.Y.2d at 181. Darden hearings serve to “protect against the contingency, of legitimate concern to a defendant, that the informer might have been wholly imaginary and the communication from him entirely fabricated.” Page of 15 25 People v. Darden, 34 N.Y.2d 177, 181 (1974). In other words, Darden exists to “verify the informant’s existence” and is not merely concerned with establishing “the reliability of a tip.” People v. Edwards, 95 N.Y.2d 486, 492 (2000). A Darden hearing creates no concerns about hamstringing law enforcement, jeopardizing investigations, or compromising the safety of confidential informants, because the procedure is conducted in camera, where the court merely seeks to assure itself that the confidential informant exists, and that he or she made the communications relied upon by the police in their search warrant application. See, People v. Darden, 34 N.Y.2d 177 (1974); People v. Edwards, 95 N.Y.2d at 492 (stating that the Darden court “established a procedure to verify the testifying officer’s credibility while keeping the informant’s identity secret”). Only if the search warrant application establishes probable cause wholly independent from communications received from a confidential informant can a defendant’s request for a Darden hearing be denied. See, Page of 16 25 People v. Farrow, 98 N.Y.2d 629 (2002); People v. Anderson, 104 A.D.3d 968 (3rd Dept. 2013). Where, as here, the police are unable to visually observe the controlled buy, the courts have held that probable cause cannot be established without some reliance upon communications from the confidential informant. See, People v. Burks, 132 A.D.2d 604 (2nd Dept. 1987); People v. Johnson, 35 Misc.3d 1233(A) (Kings Co. 2012). In this case, the communications from the CI were necessary to establish probable cause. No police officer involved in this investigation visually observed appellant do anything unlawful. The proof that appellant was engaged in the sale of cocaine came entirely from the CI. Wood acknowledged that the initial information that appellant was known as “Day Day” and was selling cocaine from his apartment at Alexander Street came entirely from the CI. (A. 044-053). With respect to the first controlled buy operation, Wood admitted in his affidavit, that the information that appellant sold cocaine came solely from the CI. To that end, Wood affirmed in his affidavit that: Page of 17 25 “CI provided the following details regarding the purchase of crack cocaine from the target. The target opened the door and the CI entered the common hallway both walked to the second floor apartment. The target removed a large quantity of crack cocaine [redacted by prosecution]. The target then handed the CI the quantity from the scale and the CI handed the target the pre-recorded APD US currency in return.” (A. 047). The best Wood could do at the Mapp hearing was to testify that another officer saw the CI enter Alexander Street, and that he listened to discussions over the live-audio transmission. There was no proof that Wood was familiar with appellant’s voice, and he made no attempt to identify him from the recordings. Moreover, no witness testified at the Mapp hearing as to having seen appellant at anytime during this controlled buy operation. Thus, all of the information that appellant sold cocaine to the CI during the first controlled buy operation came exclusively from the CI. Page of 18 25 The information related to the second controlled buy operation was similarly dependent upon communications received by the CI. Again, no police officer testified at the Mapp hearing that they observed appellant sell cocaine to the CI. At best, Wood’s testimony showed that other police officers observed some interaction between appellant and the CI. But, clearly the testimony failed to show that any police officer observed a hand-to-hand transaction between appellant and the CI. In fact, the evidence showed that the police completely lost sight of the CI during the controlled buy operation. (A. 066-067). Any conclusion that appellant sold cocaine to the CI, could have only come from communications received from the CI. The fact that police observed certain aspects of the controlled buy operations, served to only provide circumstantial corroboration for the information the CI provided to them. See, People v. Adrion, 82 N.Y.2d at 635 (stating that “testimony regarding observed facts corroborating the accuracy of the informant’s purported tip is of no moment” and, that Page of 19 25 corroboration of an asserted tip, does nothing to establish that an informant was the true source of the information, as opposed to an “unauthorized wiretap, an improper search or some other illegal origin”). As a result — in this case — the communications from the CI were necessary to establish that the police had probable cause to obtain the search warrant. Both Farrow and Anderson (cases respondent can be expected to cite), are inapposite here, because in both of those cases the police visually observed the controlled buy operations, and were capable of establishing probable cause without reliance upon any communications they received from the confidential informant. See, People v. Farrow, 98 N.Y.2d 629, 630-631 (2002); People v. Anderson, A.D.3d 968 (3rd Dept. 2013). In People v. Farrow, the police — acting on a confidential informant’s tip as to where a drug transaction was going to occur — visually observed the defendant engage in a hand-to-hand drug transaction. See, 98 N.Y.2d 629, 630-631 (2002). According to the Farrow court, these independent Page of 20 25 observations, standing alone, established probable cause sufficient to justify the defendant’s arrest, thereby obviating the need for a Darden hearing. See, People v. Farrow, 98 N.Y.2d at 631. In People v. Anderson, the police conducted a controlled buy operation with a confidential informant, and visually observed the confidential informant get into the defendant’s car, overheard and visualized the transactions, and saw the defendant counting money immediately after the transaction concluded. See, 104 A.D.3d at 969-971. After the confidential informant alighted from the vehicle, the police immediately conducted a motor vehicle stop, and after a search of the vehicle found the money and a quantity of cocaine. See, 104 A.D.3d at 969-971. Based upon these independent visual observations, combined with the surrounding circumstances of the controlled buy that corroborated these visual observations, the Anderson court found that probable cause could be established without consideration of the communications from the confidential informant. See, 104 A.D.3d at 969-971. Upon those findings, Page of 21 25 the Anderson court held that a Darden hearing was unnecessary. See, 104 A.D.3d at 969-971. In this case, the police did not make any visual observations of any actual drug transaction. As a result, neither Farrow nor Anderson provide any support for the lower court’s denial of appellant’s request for a Darden hearing. Instead, this matter is akin to the Third Department’s holding in People v. Hamilton, where the court found that the trial court erred in denying the defendant’s request for a Darden hearing. See, 227 A.D.2d 669 (3rd Dept. 1996). In Hamilton, the police were approached by a confidential informant that provided information about drug trafficking in the City of Albany, and agreed to participate in two controlled buy operations. During both of the controlled buy operations, the confidential informant was given pre- recorded buy money and was observed entering a building. On each occasion, when the confidential informant emerged from the building, he he tendered a quantity of cocaine to the police. Based upon these Page of 22 25 operations, the police obtained and executed a search warrant of the building, and seized a variety of drug paraphernalia. On appeal from his conviction, the Hamilton court found that the denial of the defendant’s request for a Darden hearing was erroneous. 2 Specifically, the Hamilton court concluded that “the police investigators who obtained the search warrant would not have been in the position to make any observations or collect any other information in support of the search warrant without the information initially supplied to them by” the confidential informant. See, People v. Hamilton, 227 A.D.2d at 670-671. Since, the confidential informant’s information “was tied to every significant aspect of the People’s proof on the issue of probable cause” the Hamilton court concluded that “the information obtained [from the confidential informant] was necessary in order to establish probable cause.” People v. Hamilton, 227 A.D.2d at 670-671. As a result, the The defendant’s conviction was affirmed, because the confidential informant testified 2 at trial. Page of 23 25 Hamilton court held that it was error for the trial court to deny the defendant’s request for a Darden hearing. The same is true in this case. Here — as explained above — appellant was entitled to a Darden hearing, because the CI’s information “was tied to every significant aspect of the People’s proof on the issue of probable cause.” The decision denying appellant’s request for a Darden hearing was erroneous, and deprived appellant of a substantial right. As such, the only remedy is reversal of the judgment of conviction, and remand for a Darden hearing and new trial. Page of 24 25 CONCLUSION The judgment of conviction must be reversed. Respectfully submitted, Dated: December 27, 2015 Troy, New York By: s/Matthew C. Hug, Esq. Matthew C. Hug, Esq. HUG LAW, PLLC Attorney for Appellant Rensselaer Technology Park 105 Jordan Road Troy, New York 12180 Tel: (518) 283-3288 Page of 25 25