People v. Perez

72 Misc.3d 310

146 N.Y.S.3d 902

The PEOPLE of the State of New York, Plaintiff,

v.Jordan PEREZ, Defendant.

7325/2018

Supreme Court, Kings County, New York.

Decided on April 30, 2021

Eric Gonzalez, District Attorney (Joseph Rozovsky of counsel), for plaintiff.

Lawrence J. Fredella, Esq., for defendant.

John T. Hecht, J.

Defendant Jordan Perez is charged with manslaughter in the second degree and other crimes based on an allegation that on October 6, 2018, on the Gowanus Expressway in Brooklyn, he drove into an active construction site, while intoxicated, and struck a car parked at the site, thereby killing a road worker.

On arrival to the scene, the police observed two extensively damaged vehicles, the individual who later passed away and defendant, who was then standing by his vehicle. Noting his admission that he had been driving, the police took him to Lutheran Hospital, where his blood alcohol content measured twice the legal limit. A cell phone was recovered from defendant when he was arrested and searched upon leaving the hospital. Later, at the 78th Precinct, defendant's blood alcohol content registered .12%. Defendant's damaged vehicle was removed from the scene and vouchered and secured at a police precinct.

On November 23, 2018, Police Officer Aubrie Van Weele appeared before a Justice of this court seeking and obtaining two search warrants, one for the vehicle and the other for the phone. This decision considers whether the search warrants properly issued.

The search warrant for the vehicle was supported by an affidavit of Officer Van Weele, who attested, among other things, to the following:

6. Your Affiant is informed by The Defendant's own statements in sum and substance that prior to arriving at the Location, The Defendant was working as a manager at a bar and it is his job to test the drinks at the bar. The Defendant further stated that the Defendant was driving The Vehicle at The Location and that the Defendant did not see the cones on the highway and that there were no lights and that he drives through that area every night and did not know there was a construction site. The Defendant further stated in sum and substance that The Vehicle had an issue with the braking system.

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11. Based on my training and experience and my conversations with other law enforcement officials and investigators, The Vehicle may have a device referred to as a Crash Data Recorder (CDR), which may be found [in] The Vehicle's interior. When accessed, the CDR may, among other things, provide some or all of the following information: throttle position, the driver's speed just before the collision, whether or not the braking system was activated and whether the driver wore a seatbelt.

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14. Based on the above, I have reason to believe that the CDR as well as the mechanical hardware of the vehicle, including but not limited to the engine, accelerator, brakes, steering system may contain evidence that would demonstrate that an offense was committed or that a particular person committed the offense described above.

The warrant, consistent with the affidavit, authorized a "mechanical inspection" of the vehicle, including its Crash Data Recorder, as well as photographs, video and photo images from such inspection.

Officer Van Weele's observations of the results of the collision and the blood alcohol test, as well as defendant's statements that he had been driving and that his vehicle's braking system might have been faulty, gave the issuing court ample reason to believe that relevant evidence would be found in a mechanical inspection of the vehicle. Accordingly, the search warrant as to the vehicle properly issued.

This conclusion is reinforced by the fact that the People could have relied on Vehicle and Traffic Law § 603, which permits a warrantless inspection of the mechanics of a vehicle involved in an accident that results in serious physical injury or death (see People v. Quackenbush , 88 N.Y.2d 534, 647 N.Y.S.2d 150, 670 N.E.2d 434 [1996] ; see generally Barry Kamins, New York Search & Seizure § 5.05 [10] [2020 ed]).¹

With respect to the search warrant pertaining to defendant's cell phone, however, the court must reach a different conclusion. The warrant application fails to provide probable cause that evidence of defendant's involvement in the fatal crash would be found in the broad search of defendant's cell phone that it authorized.

Officer Van Weele's application states as follows:

17. [T]here is reason to believe that the Cellphone and electronic data stored within, which was recovered from the Defendant, will contain forensic evidence that is material and relevant to the above investigation. The forensic evidence will corroborate information related to the possession and consumption of alcohol, and the source of intoxication of the Defendant.

18. The forensic evidence will corroborate The Defendant's identity, The Defendant's whereabouts immediately before and after the possession and consumption of alcohol before and during the vehicular collision, as well as whom The Defendant contacted immediately before, during, and after the above described incident. The forensic information will include text messages, phone numbers, voice messages, call records, call history, historic cell cite [sic ] data, stored telephone numbers, outgoing and incoming calls, contact information, addresses, pages and any other electronic information, including, but not limited to photo images, video images, or data otherwise contained within the cellphone and internal memory.

The accompanying warrant authorized a search, without any time limitation:

You are hereby authorized and directed to search and seize the above-listed property and their components as they will contain forensic evidence including: text messages, phone numbers, voice messages, call records, call history, stored telephone numbers, outgoing and incoming calls, contact information, addresses, pages and any other electronic information, photo images, video images or data otherwise contained within said cellphone and memory within.

To establish probable cause, a search warrant application must provide...