People v. Melamed

178 A.D.3d 1079

116 N.Y.S.3d 659

The PEOPLE, etc., Respondent,

v.Daniel MELAMED, Appellant.

2018–05785

2018–05786

Ind. No. 8776/16

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

Argued - April 30, 2019

December 24, 2019

DECISION & ORDER

Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (Danny K. Chun, J.), rendered February 14, 2018, convicting him of residential mortgage fraud in the second degree, grand larceny in the second degree (two counts), attempted grand larceny in the second degree (two counts), forgery in the second degree (four counts), and criminal possession of a forged instrument in the second degree (four counts), upon his plea of guilty, and imposing sentence, and (2) so much of an order of the same court entered May 12, 2017, as denied that branch of the defendant's omnibus motion which was to controvert a search warrant and to suppress physical evidence seized in the execution thereof. The appeal from the judgment brings up for review the denial of that branch of the defendant's omnibus motion which was to controvert a search warrant and to suppress physical evidence seized in the execution thereof.

ORDERED that the appeal from the order entered May 12, 2017, is dismissed, as the order is not appealable as of right or by permission (see CPL 450.10, 450.15 ); and it is further, ORDERED that the judgment is reversed, on the law, the defendant's plea of guilty is vacated, that branch of the defendant's omnibus motion which was to controvert a search warrant and to suppress evidence seized in the execution thereof is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment.

On June 9, 2015, an investigator from the New York State Office of the Attorney General (hereinafter the OAG) applied for a warrant to search premises from which the defendant operated two businesses, 1578 Union Street Realty Corporation and Dream Home Realty. In the affidavit submitted in support of the warrant application, the investigator averred that there was probable cause to believe that the defendant, using 1578 Union Street Realty Corporation and Dream Home Realty, had committed the crimes of offering a false instrument for filing, endangering the welfare of a child, and violating Real Property Law § 443, which requires disclosure of certain real estate agency relationships. The affidavit alleged that the defendant caused illegal construction and demolition to be performed at a rent-stabilized building owned by 1578 Union Street Realty Corporation, which created unliveable conditions, thus endangering child tenants of the building. It further alleged that the defendant filed an application for a permit for the construction which falsely asserted that the building would not remain occupied during the construction, and that, in connection with unrelated real estate transactions, he failed to disclose to buyers that he controlled an entity which acted as the agent for the sellers.

The search warrant obtained on the basis of this affidavit permitted the OAG to search and seize broad categories of items relating to 1578 Union Street Realty Corporation, Dream Home Realty, and a number of other businesses allegedly controlled by the defendant through which he had conducted real estate transactions. The items permitted to be searched and seized included: corporate documents; employment records, employee lists, and employment contracts; all calendar books, appointment books, and address books; all computers, computer hard drives, and computer files stored on other media; and all bank, tax and financial records. The warrant did not name or specify any particular crime or offense to which the search was related, and did not incorporate the affidavit by reference.

Pursuant to the warrant, the OAG seized nine computers and several dozen boxes of papers and files. Approximately 17 months after the search warrant was executed, the defendant was charged in the instant indictment with residential mortgage fraud in the second degree, grand larceny in the second degree (two counts), attempted grand larceny in the second degree (two counts), forgery in the second degree (four counts), and criminal possession of a forged instrument in the second degree (four counts).

The defendant thereafter moved, inter alia, to controvert the search warrant and to suppress the evidence seized in the execution thereof, asserting, among other things, that the warrant violated the Fourth Amendment of the United States Constitution because it lacked particularity and was overly broad. The motion was denied, and the defendant pleaded guilty to the charges in the indictment. On appeal, the defendant challenges the denial of suppression.

The Fourth Amendment to the United States Constitution provides that "no Warrants shall issue, but upon probable cause, ... and particularly describing the place to be searched, and the ... things to be seized" ( U.S. Const Amend IV ). The particularity requirement "prohibit[s] law enforcement agents from undertaking a general exploratory search of a person's belongings" ( People v. Brown , 96 N.Y.2d 80, 84, 725 N.Y.S.2d 601, 749 N.E.2d 170 ). "Indeed, indiscriminate searches pursuant to general warrants ‘were the immediate evils that motivated the framing and adoption of the Fourth Amendment’ " ( id. at 84, 725 N.Y.S.2d 601, 749 N.E.2d 170, quoting Payton v. New York , 445 U.S. 573, 583, 100 S.Ct. 1371, 63 L.Ed.2d 639 ). " ‘[A] search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional’ " ( Groh v. Ramirez , 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068, quoting Massachusetts v. Sheppard , 468 U.S. 981, 988 n 5, 104 S.Ct. 3424, 82 L.Ed.2d 737 ).

Here, the warrant failed to conform to that requirement. Most notably, other than a date restriction covering a period of approximately five years, the warrant permitted the OAG to search and seize all computers, hard drives, and computer files stored on other devices, without any guidelines, parameters, or constraints on the type of items to be viewed and seized (see United States v. Rosa , 626 F.3d 56, 62 [2d Cir] [concluding that the subject warrant "violated the Fourth Amendment's proscription against general searches" where it "directed officers to seize and search certain electronic devices, but provided them with no guidance as to the type of evidence sought"]; United States v. Riccardi , 405 F.3d 852, 862–863 [10th Cir.] [determining that a warrant to search computer files was unconstitutional where it was not limited to any particular files or any particular crimes]; see generally United States v. Burgess , 576 F.3d 1078, 1091 [10th Cir.] ["If the warrant is read to allow a search of all computer records without description or limitation it would not meet the Fourth Amendment's particularity requirement"] ). As has been observed by federal courts, where the property to be searched is computer files, "the particularity requirement assumes even greater importance" ( United States v. Galpin , 720 F.3d 436, 446 [2d Cir.] ) since "[t]he potential for privacy violations occasioned by an unbridled exploratory search" of such files is "enormous" ( id. at 447 ).

Additionally, as to paper documents, the warrant merely identified generic classes of items, effectively permitting the OAG to search and seize virtually all conceivable documents that would be created in the course of operating a business (see United States v. Bianco , 998 F.2d 1112, 1115–1116 [2d Cir.] ; United States v. George , 975 F.2d 72, 76 [2d Cir.] ; United States v. Maxwell , 920 F.2d 1028, 1033 [2d Cir.] ; United States v. Leary , 846 F.2d 592, 600–601 [10th Cir.] ). Moreover, it did so for the two businesses identified as being involved in the suspected offenses, as well as a number of other businesses allegedly operated by the defendant. Significantly, this essentially "all documents" search was not restricted by reference to any particular crime to which the items searched and seized should relate (see United States v. George , 975 F.2d at 76 ). Indeed, the crimes charged in the present indictment were not the crimes identified in the affidavit supporting the warrant.

Thus, the warrant at issue was precisely the kind of general warrant that the Federal Constitution prohibits (see United States v. Galpin , 720 F.3d at 447 ; United States v. Rosa , 626 F.3d at 62–64 ; see generally United States v. Burgess , 576 F.3d at 1091 ). We recognize that, as our dissenting colleague points out, "courts may tolerate some ambiguity in the warrant so long as ‘law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have insured that all those facts were included in the warrant’ " ( United States v. Galpin , 720 F.3d at 446, quoting United States v. Young , 745 F.2d 733, 759 [2d Cir.] ). Here, however, the OAG did not include descriptive facts in the warrant or even a recitation of the suspected crimes. Thus, the OAG failed "to describe the items to be seized with as much particularity as the circumstances reasonably allow[ed]" ( United States v. Galpin , 720 F.3d at 446 [internal quotation marks omitted]; see United States v. Leary , 846 F.2d at 604–605 ). While our dissenting colleague focuses on the defendant's contention that the warrant failed to specify the crimes charged, it is not this failure alone, but that failure combined with the failure to include any other details or guidelines in the warrant that could serve to limit its reach to evidence related to the crimes for which the OAG had probable cause to believe were committed, that renders this particular warrant unconstitutional.

The OAG contends that the affidavit in support of the warrant rendered the warrant sufficiently...