        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

113
KA 14-01610
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

TAVARIS MOXLEY, DEFENDANT-RESPONDENT.


SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE YOON OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Alex R.
Renzi, J.), dated July 25, 2014. The order granted defendant’s motion
to suppress tangible evidence.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed and the indictment is dismissed.

     Memorandum: The People appeal from an order granting defendant’s
motion seeking suppression of tangible evidence seized pursuant to a
search warrant. On March 10, 2014, a murder was committed in a
residence on Grafton Street in Rochester, New York. Police
investigation revealed that defendant and the victim’s nephew had been
driven to the Grafton Street residence on the day of the murder. The
police obtained a search warrant to “ping” defendant’s cell phone, and
it was discovered that defendant’s phone appeared to be “at or in the
area of 283-285 Lincoln Ave[nue]” from March 12, 2014 to March 14,
2014. Further investigation revealed that defendant was observed
meeting with persons in vehicles in the driveway of 285 Lincoln Avenue
for not more than five minutes at a time. However, no one was
observed entering or leaving the dwelling at 285 Lincoln Avenue. The
police further learned that the utilities for the 285 Lincoln Avenue
residence were not registered in defendant’s name. Defendant was,
however, a Facebook “friend” of the person to whom the utilities were
registered. Based upon the above information, inter alia, the police
applied for a search warrant for 285 Lincoln Avenue. County Court
(Piampiano, J.) determined that there was “probable cause for
believing that the property described [in the warrant] is evidence of
a crime of Murder . . . and Criminal Possession of a Weapon.” The
search warrant authorized the police to search 285 Lincoln Avenue and
its curtilage in order to find and seize: blood-related evidence; “a
black knit hat, black sweat pants, grey hoodie, and black boots”; and
defendant’s cell phone and the contents of that cell phone. When the
                                 -2-                             113
                                                           KA 14-01610

search warrant was executed, two unrelated handguns and more than 16
ounces of marihuana were recovered from 285 Lincoln Avenue. Defendant
was indicted by a grand jury and charged with two counts of criminal
possession of a weapon in the second degree (Penal Law § 265.03 [1]
[b]), and one count of criminal possession of marihuana in the second
degree
(§ 221.25). Following a suppression hearing, Supreme Court (Renzi,
J.) granted defendant’s motion. We affirm and dismiss the indictment.

     We reject the People’s contention that there was reasonable cause
to believe defendant possessed evidence or contraband relating to the
Grafton Street murder and reasonable cause to believe that the
evidence or contraband would be located at 285 Lincoln Avenue. It is
well settled that a search warrant may be issued only upon a showing
of probable cause to believe that a crime has occurred, is occurring,
or is about to occur (see generally People v Mercado, 68 NY2d 874,
875-876, cert denied 479 US 1095), and where there is sufficient
evidence from which to form a reasonable belief that evidence of the
crime may be found inside the location sought to be searched (see
People v Bigelow, 66 NY2d 417, 423). Here, we conclude that the
Supreme Court properly determined that the application for the search
warrant contained no specific factual allegations that tied the
location of 285 Lincoln Avenue to the evidence sought to be seized;
failed to establish any dominion and control of 285 Lincoln Avenue by
defendant; and failed to tie defendant to the Grafton Street murder,
or to his possession of evidence or contraband pertaining to that
murder (see generally People v Masters, 33 AD2d 637, 637; People v
Lawrence, 31 AD2d 712, 713-714).

     In light of our determination, “the   indictment must be dismissed
[inasmuch as] the unsuccessful appeal by   the People precludes all
further prosecution of defendant for the   charges contained in the
accusatory instrument” (People v Felton,   171 AD2d 1034, 1034, affd 78
NY2d 1063; see CPL 450.50 [2]).




Entered:   March 25, 2016                         Frances E. Cafarell
                                                  Clerk of the Court
