People v Perkins 2017 NY Slip Op 27296 [58 Misc 3d 171] August 21, 2017 DeMarco, J. County Court, Monroe County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 10, 2018

[*1]

The People of the State of New York, Plaintiff,

v

Joshua Perkins, Defendant.

County Court, Monroe County, August 21, 2017

APPEARANCES OF COUNSEL

Cerulli Massare & Lembke, Rochester (Matthew Lembke of counsel), for defendant.

Eric T. Schneiderman, Attorney General, Syracuse (James Mindell of counsel), for plaintiff.

{**58 Misc 3d at 173} OPINION OF THE COURT

The defendant, Joshua Perkins, is charged by way of the above-referenced indictment with two counts of criminal sale of a firearm in the first and second degrees respectively (Penal Law §§ 265.13 [2]; 265.12 [2]) and one count of second-degree forgery (Penal Law § 170.10 [3]), all in conjunction with events occurring at or near Jackson's Guns & Ammo on East Henrietta Road in the County of Monroe on or about and in between January 24, 2013 and July 10, 2014. He is further charged with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), criminal possession of a weapon in the third degree (Penal Law § 265.02 [7]), 11 counts of criminal possession of a weapon in the third degree (Penal Law § 265.02 [8]), and possession of untaxed tobacco products (Tax Law § 1814 [a] [i]), all stemming from a search of defendant's residence at or near Auramar Drive in the City of Rochester occurring on or about June 15, 2016.

Grand Jury Minutes

Defendant has requested that the court inspect the grand jury minutes, and has also moved on various grounds to dismiss or reduce the charges in the indictment. He has further requested that the court release the grand jury minutes for inspection.

The law provides that a grand jury may issue an indictment only where there is legally sufficient evidence before it that provides reasonable cause to believe that a person has committed an offense (People v Huston, 88 NY2d 400, 407 [1996]). To dismiss or reduce an indictment based on insufficient evidence, a reviewing court must consider whether the evidence produced at the grand jury, viewed in the light most favorable to the {**58 Misc 3d at 174} People, would, if unexplained and uncontradicted, warrant conviction by a petit jury (People v Grant, 17 NY3d 613, 616 [2011]). "Legally sufficient evidence" is defined by statute as "competent evidence which, if accepted as true, would establish every element of an offense charged" (CPL 70.10 [1]). "In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt" (People v Bello, 92 NY2d 523, 526 [1998]). "Thus, a reviewing court must determine whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference" (Grant, 17 NY3d at 616 [internal quotation marks omitted]).

The law also provides that a grand jury proceeding is defective when the integrity of the proceeding is impaired, and prejudice to the defendant may result. A defective grand jury proceeding warrants dismissal of an indictment. (Huston, 88 NY2d at 409.) Although failure to furnish adequate or complete instructions is not one of the grounds listed as authorizing dismissal of the indictment (see CPL 210.35 [5]),[FN1] it may, in a given case, render the grand jury proceedings defective, thus mandating dismissal of the indictment (People v Valles, 62 NY2d 36 [1984]). It is well settled that a grand jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law (People v Darby, 75 NY2d 449 [1990]). As the grand jury is not charged with the ultimate responsibility of determining the guilt or innocence, it is "unsound to measure the adequacy of the legal instructions given to the Grand Jury by the same standards that are utilized in assessing a trial court's instructions to a petit jury" (People v Calbud, Inc., 49 NY2d 389, 394 [1980]). Rather, it is "sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime" (Calbud, Inc., 49 NY2d at 394-395). The test for evaluating the adequacy of instructions is "whether [they] were so deficient as to impair the integrity of the Grand Jury's [*2] deliberations" (People v Cannon, 210 AD2d 764, 766 [3d Dept 1994] [citations omitted]). {**58 Misc 3d at 175}

To meet the statutory criteria of an assault weapon, a semiautomatic rifle (rifle) must, at a minimum, have the "ability to accept a detachable magazine" (Penal Law § 265.00 [22] [a] [emphasis added]); however, the legislature has not further defined this term. Defendant's paramount contention concerns the absence of a definition for "detachable magazine" as it applies to nine of the 18 rifles at issue in this case that he alleges have been modified by an MR2 Kit (MR2).[FN2] In sum, defendant asserts that without statutory clarification, the ambiguity permits an interpretation that the installation of an MR2 converts a detachable magazine to a fixed magazine, thereby disqualifying MR2-modified rifles from classification as assault weapons.[FN3] Accordingly, defendant seeks a decrease in the total number of rifles which currently constitute the bases of counts 6, 7 and 27, which would result in dismissal or reduction thereof.

[1] In support of his position, defendant implores the court to seek guidance from the legislatures of other states that have further defined "detachable magazine" as an ammunition feeding device that cannot be removed without disassembly of the weapon (see Conn Gen Stat Ann § 53-202a [4];[FN4] Cal Penal Code § 30515 [b]; Md Code Ann, Crim Law § 4-301 [f]). He further {**58 Misc 3d at 176} relies upon a firearms examiner's report—not presented to the grand jury—finding an MR2-modified Bushmaster rifle to have a fixed magazine as authoritative in establishing that such a modification transforms an assault weapon into a lawful rifle. The court disagrees. Defendant's contentions fall outside the scope of the court's authority to review grand jury proceedings as he requests that the court consider evidence not presented therein (see CPL 210.20, 210.25, 210.30, 210.35; see also People v Jennings, 69 NY2d 103, 115 [1986] ["the inquiry of the reviewing court is limited to the legal sufficiency of the evidence . . . since that [*3] inquiry is exclusively the province of the Grand Jury" (emphasis added)]).[FN5]

{**58 Misc 3d at 177} Here, as part of their grand jury presentation, the People called a firearms examiner who testified—after establishing his credentials—that he inspected all of the weapons at issue in this case, including the Bushmaster, and concluded that each was capable of accepting a detachable magazine (see Penal Law § 265.00 [22]). Significantly, there was no testimony whatsoever as to the modification of any rifle by means of an MR2.

Even if the court were to consider the firearms examiner's report relied upon by defendant and conclude that the Bushmaster was not an assault rifle, thereby excluding it from consideration in count 6, the integrity of the indictment would not be impaired as the remaining evidence presented to the grand jury still satisfies the required minimum number of unlawful transactions to constitute the charge.[FN6] Additionally, defendant's tenuous extrapolation of the [*4] conclusion from the firearms examiner's report that the affixing of an MR2 converts a detachable magazine to a fixed magazine is unsupported by the document itself; the report merely indicates that the magazine is fixed but does not set forth a basis for that conclusion. Rather, it is defendant's unsupported and self-interested assertion that the Bushmaster was modified by an MR2.

To the extent any inconsistencies exist between the firearms examiner's report and grand jury testimony, the court concludes it would not have a material influence upon the grand jury, as credibility factors should be more appropriately reserved for presentation to the petit jury (see People v Suarez, 122 AD2d 861 [2d Dept 1986], lv denied 68 NY2d 817 [1986]; see generally People v Davis, 48 AD3d 1255 [4th Dept 2008], lv denied 10 NY3d 839 [2008], mot for writ of error coram nobis denied 64 AD3d 1200 [2009]).

Accordingly, based upon an examination of the grand jury minutes, the court concludes that the offenses charged in the indictment are supported by legally sufficient evidence, and the evidence provides reasonable cause to believe that defendant committed the offenses charged. Furthermore, the proceedings were not defective. Viewing the People's instructions in totality, this court finds no deficiency that would have impaired {**58 Misc 3d at 178} the integrity of the grand jury's deliberations. Contrary to defendant's contention, that the People did not provide a specific definition for "detachable magazine" to the grand jury did not impair the integrity of the proceeding (see generally Calbud, Inc., 49 NY2d 389; People v Douglas, 288 AD2d 859 [4th Dept 2001], lv denied 97 NY2d 681 [2001]; People v Scott, 175 AD2d 625 [4th Dept 1991], lv denied 78 NY2d 1130 [1991]).

Defendant also requests that the court release a portion of the minutes of the grand jury proceeding as specified above. Grand jury proceedings are secret (CPL 190.25 [4] [a]). "[A] party seeking disclosure of grand jury minutes must establish a compelling and particularized need for them" (People v Robinson, 98 NY2d 755, 756 [2002]). If a party successfully establishes a compelling and particularized need for disclosure of the grand jury minutes, then the court must properly balance the public interest for disclosure against the public interest favoring secrecy (see People v Fetcho, 91 NY2d 765 [1998]). Defendant has failed to establish a compelling and particularized need for disclosure of the grand jury minutes. Accordingly, his request to release the minutes of the grand jury proceeding is denied.

Search of Auramar Drive

As a result of defendant's motion to suppress evidence, the court conducted a combined Payton, Mapp and Franks[FN7] hearing on August 4, 2017. At the conclusion of the proceeding, the parties each offered oral argument in support of their respective positions and the court reserved decision. The following constitutes the court's findings of fact and conclusions of law.

A. Findings of Fact

The People called two witnesses at the hearing: State Police Investigators Jeffrey [*5] Ulatowski and Robert Kotin. First, Investigator Ulatowski testified that on June 15, 2016 at approximately 6:54 a.m., he and three other members of the violent felony warrant execution team responded to Auramar Drive in the City of Rochester in an attempt to serve a warrant {**58 Misc 3d at 179} upon an individual named "Ben P." A copy of the warrant was received into evidence as People's exhibit 2. Significantly, the address for Ben P. indicated on the warrant differed from that of Auramar Drive and the record is wholly devoid of any factual basis which led officers to this particular location in their efforts to execute the warrant. Investigator Ulatowski indicated that each of the team members drove separate vehicles to the residence and arrived simultaneously. He further indicated that they were all equipped with firearms and wore protective vests which clearly identified them as law enforcement. Upon arrival, he approached the residence accompanied by two team members and knocked on the front door. The fourth member of their team remained in the front yard with a canine as he prepared to conduct a perimeter sweep of the residence. Shortly thereafter a woman later identified as "Judy P." opened the front door and spoke with the officers. Investigator Ulatowski informed her that he had a warrant for Ben P. and inquired if he was inside. After Judy P. responded that Ben P. was not home, Investigator Ulatowski sought her consent to enter the residence to search for him, to which she responded, "I guess I don't have a choice, do I." A search of the home ensued during which Investigator Ulatowski indicated he observed what appeared to be an assault rifle and high capacity magazines located in defendant's bedroom and in the basement respectively. Upon observing these items in plain view, he contacted a senior investigator to report his findings.

The People next called Investigator Kotin who testified that he responded to Auramar Drive upon the report of what appeared to be an assault rifle and high capacity magazines in plain view inside the residence. Relying upon his observations once inside, Investigator Kotin applied for a search warrant (received in evidence as People's exhibit 1) which was ultimately approved and thereafter executed. The items recovered inside the residence include an assault rifle, several high capacity magazines, Suboxone, and approximately 16,000 untaxed cigarettes.

Defendant called one witness, Judy P., who essentially reiterated the testimony of Investigator Ulatowski as it pertained to the events precipitating the initial police entry into Auramar Drive.

B. Conclusions of Law

[2] Defendant challenges the tangible evidence recovered from his residence as a result of a search pursuant to consent {**58 Misc 3d at 180} provided by Judy P. and a subsequently obtained warrant, the application for which was based upon the observations of certain prohibited weapons in plain view following the initial police entry. He contends, in the main, that Judy P. did not voluntarily consent to a search of their shared residence. The court agrees. The motive force for the constitutional safeguards precluding unreasonable searches and seizures is protection against arbitrary governmental invasion of privacy (People v Hodge, 44 NY2d 553, 557 [1978]). Subject only to a few specifically established and well-delineated exceptions, warrantless searches and seizures are per se unreasonable (Payton v New York, 445 US 573, 586 n 25 [1980]; Schneckloth v Bustamonte, 412 US 218, 219 [1973]; Katz v United States, 389 US 347, 356 [1967]; Coolidge v New Hampshire, 403 US 443, 453 [1971]).

"The purpose of a warrant is to allow a neutral judicial officer to assess whether the police have probable cause to make an arrest or conduct a search. As [the Supreme Court] [*6] explained, the placement of this checkpoint between the Government and the citizen implicitly acknowledges that an officer engaged in the often competitive enterprise of ferreting out crime may lack sufficient objectivity to weigh correctly the strength of the evidence supporting the contemplated action against the individual's interests in protecting his own liberty and the privacy of his home." (Steagald v United States, 451 US 204, 212 [1981] [internal quotation marks and citation omitted].)

When consent is the justification for a warrantless search, the People bear a heavy burden of proving, by clear and convincing evidence (People v Zimmerman, 101 AD2d 294 [2d Dept 1984]), the consent was voluntarily obtained (People v Whitehurst, 25 NY2d 389 [1969]) and courts should indulge every reasonable presumption against waiver (People v Guzman, 153 AD2d 320 [4th Dept 1990], lv granted 75 NY2d 926 [1990], citing Johnson v Zerbst, 304 US 458 [1938]). Consent to search is voluntary only when it is a true act of the will, and an unequivocal product of an essentially free and unconstrained choice (People v Kuhn, 33 NY2d 203 [1973]; People v Gonzalez, 39 NY2d 122, 128 [1976]; see People v Kendrick, 147 AD3d 1419 [4th Dept 2017]; People v Rose, 122 AD2d 484 [3d Dept 1986]). "Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle." (Gonzalez, 39 NY2d at 128.) "No one circumstance is determinative of the {**58 Misc 3d at 181} voluntariness of consent. Whether consent has been voluntarily given or is only a yielding to overbearing pressure must be determined from the circumstances." (Id.) To be certain, submission to lawful authority is not the equivalent to voluntary consent (Bumper v North Carolina, 391 US 543, 549 n 14 [1968]).

In considering the voluntariness of Judy P.'s waiver, the most persuasive factor, in the court's view, is the explicit assertion by Investigator Ulatowski regarding the existence of a warrant for Ben P. made immediately prior to seeking Judy P.'s consent. By conveying this information, he impliedly suggested that the police had a lawful right to enter and search the residence and Judy P. had no right to refuse. Such a situation is "instinct with coercion" (Bumper, 391 US at 550). It is of no moment that the warrant for Ben P. carried with it the limited authority to enter the residence only if Investigator Ulatowski had a reason to believe that Ben P. was inside (Payton, 445 US at 603; CPL 120.80 [4]) as the legal distinctions between arrest and search warrants[FN8] are not readily apparent to a layperson. Moreover, Judy P.'s response—"I don't have a choice"—empirically demonstrates the compulsory effect of Investigator Ulatowski's warrant announcement. Those words certainly cannot be construed as demonstrative of a free and unconstrained choice, but rather as acquiescence resulting from the belief that protest to the Investigator's request would be futile.

This court also finds that the suddenness and intensity of the police presence at Auramar Drive further contributed to Judy P.'s inability to voluntarily consent. At nearly 7:00 a.m. while Judy P. was inside of her home alone, four armed officers—including one canine unit—arrived in unison in separate vehicles all dressed in a manner suggestive of their readiness to complete a tactical operation. Though inadvertent, the circumstances reveal domineering official conduct, [*7] and compel the court to conclude that Judy P.'s will was overborne at the time she agreed to the search of the residence. Based upon a totality of the circumstances, the atmosphere as inferred from the testimony could hardly have been less coercive, and where {**58 Misc 3d at 182} there is coercion, there cannot be consent (Bumper, 391 US at 550). Thus, the fruits obtained as a result of Judy P.'s involuntary consent to search, which include the tangible items recovered throughout defendant's residence, must be suppressed (see Wong Sun v United States, 371 US 471 [1963]).

Furthermore, the court would be remiss were it not to express its concern on the seeming encroachments upon the constitutional protections implicated in this matter. Physical entry into one's home is the chief evil against which the wording of the Fourth Amendment is directed (Payton, 445 US at 585). The language therein embodies the centuries-old principle of respect for the privacy of the home (Wilson v Layne, 526 US 603, 610 [1999]). At the Amendment's very core stands the right of a person to retreat inside and there be free from unreasonable governmental intrusion (United States v Allen, 813 F3d 76, 80 [2d Cir 2016]). Indeed, the Fourth Amendment draws a firm line at the entrance to a home. Without a warrant, that threshold may not be reasonably crossed absent exigent circumstances (Payton, 445 US at 590; see generally Allen, 813 F3d 76) or, as discussed above, voluntary consent (Gonzalez, 39 NY2d 122; Bumper, 391 US 543).

Yet, police do not have unlimited authority to seek consent (People v Hall, 51 Misc 3d 1203[A], 2016 NY Slip Op 50364[U], *4 [Monroe County Ct 2016]; People v Marshall, 5 AD3d 42 [3d Dept 2004], lv denied 2 NY3d 802 [2004]). Rather, a police officer's request to search must be justified by a founded suspicion that criminal activity is afoot (People v Dunbar, 5 NY3d 834, 835 [2005]).[FN9] A failure to apply this standard would effectively permit police to knock on any door at any time and request {**58 Misc 3d at 183} consent to search for any reason or no reason whatsoever (People v Madden, 58 AD3d 1023, 1027 [3d Dept 2009, Kane, J., concurring]). Though a [*8] hyperbolic illustration, it certainly highlights the absurdity of such a result and demonstrates the incongruence with the tenets of the Fourth Amendment. Even the most limited intrusion by the police of a person walking on the street "must be predicated on more than a hunch, whim, caprice or idle curiosity" (People v Ocasio, 85 NY2d 982, 985 [1995] [citation omitted]). To not extend the same, or greater, level of protection to governmental intrusions occurring at a home is wholly illogical. The very notion that an individual is entitled to lesser protections at their home than on the street erodes Fourth Amendment protections and furthermore is unsupported by the litany of jurisprudence disallowing unreasonable searches. Accordingly, the court finds that the application of De Bour to police investigations occurring at a residence is consistent with our laws and the integrity of the Fourth Amendment (see generally Hall, 2016 NY Slip Op 50364[U]; Marshall, 5 AD3d 42).

[3] The imperativeness of the need to review the initial intrusion is especially apparent in this case, as on the record before the court, there was seemingly no nexus between the subject of the warrant and the residence wherein police sought entry. Aside from Investigator Ulatowski's unsupported conclusory statement that he believed Ben P. resided at Auramar Drive, there is no evidence to suggest that the warrant execution team possessed even a scintilla of information—either from personal observations, fellow officers, or from some other independent source—that Ben P. was inside the residence at the time permission to enter was sought. Not even the data contained within the warrant itself established a connection between Ben P. and Auramar Drive. On this record, the court must conclude that there was insufficient information to elevate the police-initiated encounter to a common-law inquiry by requesting consent to search defendant's residence.

Assuming arguendo the voluntariness of Judy P.'s consent, inasmuch as it was obtained immediately after the improper {**58 Misc 3d at 184} inquiry, the court cannot conclude that her consent was acquired by means "sufficiently distinguishable from the taint" of the illegal request (People v Carr, 103 AD3d 1194, 1196 [4th Dept 2013], citing People v Banks, 85 NY2d 558 [1995], cert denied 516 US 868 [1995]; see generally People v Hollman, 79 NY2d 181 [1992]).

Conclusion

In light of the foregoing, it is hereby ordered that the branch of defendant's omnibus motion seeking dismissal or reduction of the charges in the indictment is denied in its entirety; and it is further ordered that defendant's motion to suppress the tangible evidence recovered from the premises of Auramar Drive is granted.

Footnotes

Assessing vagueness challenges, courts have developed a two-part test: first, to ensure that no person is punished for conduct not reasonably understood to be prohibited, the court must determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute; second, the court must determine whether the enactment provides officials with clear standards for enforcement (People v Stuart, 100 NY2d 412, 420-421 [2003]).

With these principles in mind, the court turns to defendant's attack on the words "detachable magazine." He suggests that the ambiguity of this phrase does not place a person on notice of proscribed conduct, as detachable magazines can be modified by an MR2 to be fixed magazines, even if that modification is only temporary and reversible by means of disassembly. In essence, defendant's contention attempts to create varying degrees of detachability; however, it does not appear that such a reading was contemplated by the legislature. Courts are constitutionally bound to give effect to the expressed will of the legislature and the plain and obvious meaning of a statute is always preferred to any curious, narrow or hidden sense that nothing but a strained interpretation of legislative intent would discern (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471 [1978]). A plain reading of "detachable"—without further modifiers or instruction—is absolute in its meaning. The court is satisfied that the ordinary understanding of "detachable magazine" furnishes defendant and officials alike with adequate notice. Perhaps further clarification would assist those attempting to navigate their way through the labyrinth of gun regulation; however, the court cannot conclude, based upon the plain meaning of the statute, that it is unconstitutionally vague. The court further notes that, though considered in different contexts, this statute has withstood previous constitutional challenges (see Schulz v State of N.Y. Exec., 134 AD3d 52 [3d Dept 2015], appeal dismissed 26 NY3d 1139 [2016], reconsideration denied 27 NY3d 1047 [2016]; New York State Rifle, 804 F3d 242). Finally, to the extent defendant relies upon other state legislatures that have further defined "detachable magazine," he declined to acknowledge those that have not (see Haw Rev Stat Ann § 134-1; Colo Rev Stat Ann § 18-1.3-406 [7] [b]; Minn Stat Ann § 624.712 [7] [1] [xii]; Idaho Code Ann § 18-3302 [2] [e] [i] [3]).



Footnote 6:A total of 11 transactions, including the Bushmaster, are alleged in count 6, which requires the sale of 10 or more firearms in not more than a year (see Penal Law § 265.13 [2]).



Footnote 7:The evidence adduced at the hearing was limited to the circumstances surrounding the consent to the search of Auramar Drive as neither counsel explored the veracity of the search warrant affiant during their examinations. Accordingly, defendant failed to establish by a preponderance of the evidence the falsehood of the statements contained within the search warrant application (see Franks v Delaware, 438 US 154 [1978]; People v Baris, 116 AD2d 174 [4th Dept 1986], lv denied 67 NY2d 1050 [1986]).



Footnote 8:The interests protected by an arrest warrant and a search warrant differ in that the former serves to protect an individual from an unreasonable seizure while the latter protects an individual's reasonable expectation of privacy in a particular place or thing. Accordingly, an arrest warrant, without more, may not be utilized as a basis to enter one's residence (Payton, 445 US at 603; CPL 120.80 [4]).



Footnote 9:In People v De Bour (40 NY2d 210 [1976]), the Court of Appeals articulated a cohesive four-tiered framework for evaluating police-initiated street encounters, explaining its purpose was to "provide clear guidance for police officers seeking to act lawfully in what may be fast-moving street encounters" (People v Moore, 6 NY3d 496, 499 [2006] [emphasis added]). Subsequently, the De Bour framework has been extended to intrusions occurring in various other contexts (People v Garcia, 20 NY3d 317 [2012] [application of De Bour analysis during a traffic stop investigation]; People v McIntosh, 96 NY2d 521 [2001] [search of passengers on a commercial bus]; People v May, 81 NY2d 725 [1992] [approach of passengers in stationary vehicle]; Marshall, 5 AD3d 42 [search of college dorm room]; Hall, 2016 NY Slip Op 50364[U] [search of residence]; but see People v Madden, 58 AD3d 1023 [3d Dept 2009] [finding the De Bour framework inapplicable to a police investigation occurring at a hotel]; People v Ortiz, 141 AD3d 872 [3d Dept 2016] [investigation inside defendant's home]).

To the extent that Madden and Ortiz decline to apply a De Bour framework, the court, respectfully, is unpersuaded by the reasoning employed therein, finding it contradictory to that of De Bour and its progeny. Yet, these holdings which seemingly imply a departure from well-established principles should not be interpreted as vitiating former precedent (see New Amsterdam Cas. Co. v National Union Fire Ins. Co., 266 NY 254, 261 [1935] [an opinion intended to overrule former precedents, establishing a new principle, should be expressed in plain and explicit terms]), but rather as limited in application to the unique factual circumstances presented in those respective cases.



