People v. Destefano

74 Misc.3d 858

164 N.Y.S.3d 412

PEOPLE of the State New York,

v.Benjamin DESTEFANO, Defendant.

Ind No. 108N20

Supreme Court, Nassau County, New York.

Decided on February 18, 2022

HON. ANNE T. DONNELLY, District Attorney, Nassau County, Mineola, NY 11501, By: Chantee Dempsey, Esq., for Plaintiff.

Peter E. Brill, Esq., 64 Hilton Avenue, Hempstead, New York 11550, for Defendant.

Robert G. Bogle, J.

With a constitutional issue of first impression under New York State law, the defendant, Benjamin Destefano, by counsel, moves to suppress evidence that was the result of a warrantless pole camera video surveillance device placed across the street from the defendant's alleged residence. The determination is hereinafter provided.

I INTRODUCTION

The defendant, Benjamin Destefano is Indicted for failure to register or to verify as a sex offender as required by Article 6-C of the New York State Corrections Law no later then ten (10) calendar days after any change of address under New York Corrections Law 168-F (4). The defendant was arraigned and plead not guilty on February 6, 2020.

The current issue before this Court concerns a pole camera placed upon a utility pole to observe the front of a particular house on Brewster Gate, North Massapequa, Nassau County, New York. The allegations are that the defendant, who claimed he was homeless, was observed entering the Brewster Gate house each night and leaving the next morning for fourteen (14) days, from approximately April 18, 2018 through May 2, 2018. As a result, it is alleged he failed to notify the appropriate law enforcement authorities regarding his change of address under New York State Corrections Law 168-F (4). The defendant, due to the fact this was done without a court ordered warrant, moves to suppress this evidence and it's "fruit of the poisonous tree".

The People oppose, noting that the motion is not timely made under CPL 255.20 (1). If the Court does reach the merits, the People argue that the defendant is without standing and has no reasonable right to privacy as to the observed coming and going on the front of a house on a public street. Thus, no court ordered warrant is needed.

II STATEMENT OF FACTS

The following is a review and summary of the facts set forth in the affirmations of both Defense counsel and the Assistant District Attorney.

In April of 2018 the Suffolk County Special Victims Squad (Meghan's Law Unit) with the assistance of the Suffolk County Electronics Investigative Unit installed a pole camera and video recording device on a utility poled at the address at Brewster Gate, North Massapequa, Nassau County, New York. The recording was continuous from April 18 to May 2, 2018.

On May 10, 2018, the defendant was arrested and made aware that the utility pole camera footage existed. This information was provided to the defense counsel.

The defendant was arraigned on the Indictment February 6, 2020. On June 5, 2020 an Omnibus motion was made by defense counsel, People filed their opposition on June 9, 2020 and another judge of this Court issued a decision on July 30, 2020.

The Court notes that, after the defendant provided the District Attorney's office with "teralyte hard drive", a copy of the pole camera footage was mailed to the defense counsel on or about June 22, 2020. Thereafter, this motion to suppress the pole camera was submitted by defense counsel on November 12, 2020. The People submitted opposition on November 18, 2020. In October of 2021 this case was transferred to the undersigned judge. This Court will now review the issues presented.

III TIMELINES OF THE MOTION

The time restrictions for pre-trial motions in criminal proceedings are not casual and are based upon the strong public policy to further orderly trial procedures and preserve scarce trial resources. People v. Jackson , 48 A.D.3d 891, 851 N.Y.S.2d 677 (3rd Dept. 2008). Under CPL 255.20 (1), all pre-trial motions must be served or filed within forty-five (45) days of arraignment and before the commencement of trial. This motion particularly pertains to the suppression of evidence to be used at trial under CPL 255.10 (f). All pre-trial motions made after forty-five (45) days may be summarily denied by the Court under CPL 255.20 (3). People v. Bonilla , 95 A.D.3d 898, 943 N.Y.S.2d 218 (2nd Dept. 2012) ; People v. Gibbs , 210 A.D.2d 4, 618 N.Y.S.2d 813 (1st Dept. 1994).

Here, the defense counsel was informed of the pole video at the time of arrest on May 10, 2018. Although the tape was not available at that time, he was informed of its existence and of the potential issue of the curtilage location.

On February 6, 2020 the defendant was arraigned. His Omnibus Motion was filed June 5, 2020 and a decision by the Court was rendered on July 30, 2020. The motion did not address any discussion of the pole camera.

The defendant received the actual tape on or about June 22, 2020. The defense motion on this issue was filed on November 12, 2020, nearly five (5) months after receipt of the materials, fully beyond the forty-five (45) days permitted by statute. Thus, the forty-five (45) days period was beyond the receipt of the pole video tape and the defense failed to submit the within suppression motion during that period as well. CPL 255.20 (1)(c). The Court further reiterates the defendant was made aware of this issue on May 10, 2018, fully twenty (20) months from his arraignment on the Indictment.

Defense counsel has failed to show good cause or any serious reason whatsoever for failing to make this supplemental motion within the forty-five (45) day period. People v. Cimino. 49 A.D.3d 1155, 856 N.Y.S.2d 368 (4th Dept. 2008). Also, this issue could have, at least on an initial level, could have been included in the defendant's Omnibus Motion, and therefore prohibits him from a subsequent remedial motion. It is well established that if a motion is required to be included in an Omnibus Motion and is not made at the appropriate time, it is proper to deny the supplemental motion. People v. Falcon , 281 A.D.2d 368, 722 N.Y.S.2d 538 (1st Dept. 2001).

Accordingly, the motion is denied for failure to file within forty-five (45) days under CPL 255.20 (1).

IV CONSTITUTIONAL ISSUES

A) STANDINGS

Although this motion was made in an untimely manner and is to be denied accordingly, a serious issue of first impression has been presented to this Court. Therefore assuming arguendo this Court shall review the defendant's application on the merits. Therefore, the Court will now consider the defendant's claim of suppression as it concerns the pole camera that video recorded the front of the property from April 18, 2018 to May 2, 2018.

The defendant claims standing for this suppression motion based upon his acknowledgment that he keeps some possessions, his cats and occasionally sleeps over at the Brewster Gate residence.

Under both New York State and Federal Law, a defendant moving to suppress evidence on constitutional grounds, must establish an expectation of privacy in the place searched which society would recognize as reasonable. People v. Ramirez-Portoreal , 88 N.Y.2d 99, 643 N.Y.S.2d 502, 666 N.E.2d 207 (1996) ; United States v. Haqq , 278 F.3d 44 (2nd Cir. 2002). Reasonableness can be determined by several examples, such as in People v. Edwards , 124 A.D.3d 988, 1 N.Y.S.3d 523 (3rd Dept. 2015), where the Appellate Division accorded standing to a frequent overnight guest in an apartment. However, a different court denied standing where a visitor had "relatively tenuous ties to a house" (see People v. Pope , 113 A.D.3d 1121, 977 N.Y.S.2d 866 [4th Dept. 2014] ). These are factual issues best resolved at a court hearing. For purposes of review of the defendant's motion, the Court will assume the defendant possesses standing as to the North Massapequa house.

B) CURTILAGE

One of primary arguments of defense counsel is that by placing a pole camera and video recording device on a utility pole to observe the "curtilage" of the defendant's property without a court ordered warrant, the video contents must be suppressed. The questions is whether or not what was observed is in fact curtilage?

The determination of whether an area falls within a house's curtilage may be made by reference to four factors (1) the proximity of the area claimed to be curtilage to the house (2) whether the area is included within an enclosure surrounding the house (3) the nature of uses to which the area is put and (4) the steps taken by the resident to protect the area from observation by people passing by. People v. Theodore , 114 A.D.3d 814, 980 N.Y.S.2d 148 (2nd Dept. 2014). In Theodore , the Appellate Division held that a blocked-off rear yard was part of the curtilage, far different facts from the case at bar.

Here, upon review of the four factors set forth in Theodore , it is clear that the pole camera was (1) situated on a utility pole across the street (2) was not observing an enclosed area (3) the area observed was not being personally and secretly used by the defendant, and (4) there were no grounds to protect the area from observation as it is open to the public, and is in the visible front of the premises. Therefore, unlike closed-in areas such as back yards or land purposely blocked by neighbor's high fence or by significant distance, the pole surveillance camera is clearly not observing the curtilage of the premises. People v. Morris , 126 A.D.3d 813, 4 N.Y.S.3d 305 (2nd Dept. 2015) ; People v. Reilly , 195 A.D.2d 95, 606 N.Y.S.2d 836 (3rd Dept. 1994).

C) Requirement of a Court Ordered Surveillance Warrant

The primary focus of the defendant's motion is directed on the issue of the failure of law enforcement personnel to secure a court ordered warrant to install the surveillance camera across the street of the defendant's alleged residence to observe his comings and goings over a several week period. Defense counsel argues that this conduct is in violation of both the Federal and New York State Constitutions, and as such, must be suppressed,...