People v. Cruz

221 A.D.3d 1423

200 N.Y.S.3d 576

The PEOPLE of the State of New York, Respondent,

v.Gabriel CRUZ, Defendant-Appellant.

640

KA 18-00291

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 17, 2023

JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND NOWAK, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree ( Penal Law § 125.25 [1] ), attempted murder in the second degree ( §§ 110.00, 125.25 [1] ), and assault in the second degree (§ 120.05 [2]). The conviction arose from events in which defendant, while riding in the front passenger seat of an SUV driven by his accomplice as they pursued, through parking lots and on public roadways, a minivan that was occupied by two people known to defendant and the accomplice, leaned out of the window and fired numerous gunshots at the minivan over the course of the pursuit, thereby causing a fatal wound to the head of the passenger of the minivan (deceased victim) and a nonfatal wound to the arm of the driver of the minivan (surviving victim). We affirm.

Defendant contends that Supreme Court erred in refusing to suppress the historical cell site location information (CSLI) records related to his cell phone because, according to defendant, the search warrant that authorized law enforcement officials to obtain the CSLI records from defendant's cellular service provider was not supported by probable cause connecting defendant to the shooting. We reject that contention.

The United States Constitution provides that "[t]he 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 [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" ( US Const, 4th Amend; see also NY Const, art I, § 12 ; People v. Nieves , 36 N.Y.2d 396, 400, 369 N.Y.S.2d 50, 330 N.E.2d 26 [1975] ). "Given the more modern appreciation that property rights are not the sole measure of Fourth Amendment violations, a person's right to privacy has become the paramount concern in assessing the reasonableness of government intrusions, especially as innovations in surveillance tools ... ha[ve] enhanced the [g]overnment's capacity to encroach upon areas normally guarded from inquisitive eyes, and courts must continue to secure the privacies of life against arbitrary power" ( People v. Schneider , 37 N.Y.3d 187, 192, 151 N.Y.S.3d 1, 173 N.E.3d 61 [2021], cert denied ––– U.S. ––––, 142 S.Ct. 344, 211 L.Ed.2d 183 [2021] [internal quotation marks omitted]; see Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 2213-2214, 201 L.Ed.2d 507 [2018] ). "[A]n individual maintains a legitimate expectation of privacy in the record of [their] physical movements as captured through CSLI" and, therefore, "the [g]overnment must generally obtain a warrant supported by probable cause before acquiring such records" ( Carpenter , ––– U.S. ––––, 138 S.Ct. at 2217, 2221 ; see People v. Ozkaynak , 203 A.D.3d 1616, 1617, 161 N.Y.S.3d 921 [4th Dept. 2022] ).

"Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but[, rather, it] merely [requires] information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" ( People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ). " ‘[T]he legal conclusion [as to whether probable cause existed] is to be made after considering all of the facts and circumstances together’ ... A synoptic evaluation is essential because ‘[v]iewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found’ " ( People v. Shulman , 6 N.Y.3d 1, 26, 809 N.Y.S.2d 485, 843 N.E.2d 125 [2005], cert denied 547 U.S. 1043, 126 S.Ct. 1623, 164 L.Ed.2d 339 [2006], quoting Bigelow , 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 ). With respect to judicial review of the validity of search warrants, it is well established that "search warrant applications should not be read in a hypertechnical manner as if they were entries in an essay contest"; rather, such applications "must be considered in the clear light of everyday experience and accorded all reasonable inferences" ( People v. Hanlon , 36 N.Y.2d 549, 559, 369 N.Y.S.2d 677, 330 N.E.2d 631 [1975] ; see People v. Griminger , 71 N.Y.2d 635, 640, 529 N.Y.S.2d 55, 524 N.E.2d 409 [1988] ; People v. Hightower , 207 A.D.3d 1199, 1201, 171 N.Y.S.3d 297 [4th Dept. 2022], lv denied 38 N.Y.3d 1188, 176 N.Y.S.3d 202, 197 N.E.3d 482 [2022] ). Indeed, "reviewing courts should accord the process proper deference and not defeat search warrants (or discourage law enforcement officials from seeking them) by imposing overly technical requirements or interpreting them incompatibly with common sense" ( People v. Cahill , 2 N.Y.3d 14, 41, 777 N.Y.S.2d 332, 809 N.E.2d 561 [2003] ). In that regard, "[a]pproval by a reviewing magistrate cloaks a search warrant with ‘a presumption of validity’ " ( People v. Deprospero , 91 A.D.3d 39, 44, 932 N.Y.S.2d 789 [4th Dept. 2011], affd 20 N.Y.3d 527, 964 N.Y.S.2d 487, 987 N.E.2d 264 [2013], quoting People v. Castillo , 80 N.Y.2d 578, 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050 [1992], cert denied 507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477 [1993] ; see People v. Socciarelli , 203 A.D.3d 1556, 1557-1558, 164 N.Y.S.3d 749 [4th Dept. 2022], lv denied 38 N.Y.3d 1035, 169 N.Y.S.3d 241, 242, 189 N.E.3d 348, 349 [2022]). "In reviewing the validity of a search warrant to determine whether it was supported by probable cause ..., the critical facts and circumstances for the reviewing court are those which were made known to the issuing [m]agistrate at the time the warrant application was determined" ( Nieves , 36 N.Y.2d at 402, 369 N.Y.S.2d 50, 330 N.E.2d 26 ).

Applying the requisite standard of review in this case, we conclude that the information contained in the search warrant application subscribed and sworn to by an investigating police officer, along with the supporting depositions of various witnesses submitted therewith (see CPL 690.35 [1], [3] [c] ), was sufficient to support a reasonable belief that evidence of defendant's involvement in the shooting might be found in his CSLI records (see People v. Ozkaynak , 217 A.D.3d 1376, 1377, 190 N.Y.S.3d 740 [4th Dept. 2023], lv denied 40 N.Y.3d 998, 197 N.Y.S.3d 119, 219 N.E.3d 880 [2023] ; People v. Harlow , 195 A.D.3d 1505, 1506, 148 N.Y.S.3d 593 [4th Dept. 2021], lv denied 37 N.Y.3d 1027, 153 N.Y.S.3d 422, 175 N.E.3d 447 [2021] ). In his interview with the investigating police officer and in his supporting depositions, the surviving victim stated that, prior to the shooting, he had been having ongoing "issues" with a group consisting of defendant, the accomplice, and a third male. Indeed, approximately one week before the shooting, the surviving victim was struck in the head with a bottle at a party, and other partygoers informed him that defendant was the assailant. The surviving victim also reported that, on the afternoon of the shooting, after he picked up the deceased victim in a minivan, he noticed that an SUV with two occupants, whom he identified at that time as the accomplice in the driver's seat and the third male in the front passenger seat, were pursuing his minivan at a high rate of speed. As the surviving victim made unsuccessful attempts to drive away from the pursuing SUV, the occupants thereof began firing numerous gunshots at the minivan, and the gunfire continued at various points during the chase. In police interviews and supporting depositions, several bystander witnesses corroborated the details of the shooting, including by identifying the particular SUV by color, model, and license plate and by recounting that the front passenger of the SUV was firing gunshots at the minivan. The accomplice admitted in a police interview following his arrest that, on the day of the shooting, he was operating the SUV, which was registered to his cousin, and that he was accompanied by a passenger, but the accomplice declined to identify the passenger. The cousin recounted in a police interview and in a supporting deposition that, approximately 1 to 11/2 hours after the time of the shooting, she received a phone call from the accomplice, who sounded scared, informing her that he had "hit somebody" and requesting that she retrieve the SUV as soon as possible. When the cousin arrived at the arranged location, she observed that defendant, whom the cousin described as a friend of the accomplice, was present with the accomplice. In response to the cousin's observation that there was no damage to the SUV despite the accomplice's claim of a vehicular accident, the accomplice responded that the SUV was not damaged because it was a large-style vehicle. The cousin further reported that the accomplice and defendant then got into a green car that was parked on the street, which may have belonged to a family member of defendant, and left the location; the cousin did not know who else was in the green car. The cousin thereafter arranged through her family members to have the SUV brought to a salvage yard, from which the police later recovered it.

Here, although the surviving victim may have initially identified the third male as the front passenger of the SUV involved in the rapidly-developing, high-speed pursuit and shooting, we conclude, upon "considering all of the facts and circumstances together" ( Bigelow , 66...