Supreme Court, New York County, November 7, 2018

Aljulah Cutts, defendant pro se.

Cyrus R. Vance, Jr., District Attorney, New York City (Shana Strain of counsel), for plaintiff.

The defendant was convicted on June 20, 2012, after a jury trial, of murder in the first degree, murder in the second degree, and robbery in the first degree. He subsequently moved before this court for an order vacating his conviction pursuant to Criminal Procedure Law § 440.10 on the ground that, inter alia, the police exceeded the scope of a search warrant when they allegedly obtained cell site location information (CSLI) to determine his whereabouts in order to arrest him.^[FN1] In a decision dated January 11, 2017, this court held that his claim was procedurally barred because sufficient facts appeared in the record to have permitted appellate review but the claim was not raised on appeal.^[FN2] Moreover, this court found his claim that counsel was ineffective for failing to assert that the police had exceeded the scope of the search warrant to be meritless, as the search warrant at issue did authorize the wireless company to provide the police with the historical as well as real-time cell site information, which was used to locate the defendant and led to his arrest.^[FN3]

Defendant now moves, pro se, for an order pursuant to Civil Practice Law and Rules § 2221 (e) (2) granting leave to renew his previously decided CPL 440.10 motion on the ground that Carpenter v United States (585 US —, 138 S Ct 2206 [June 22, 2018]), a recently decided United States Supreme Court decision, invalidates this court's previous CPL 440 decision.{**62 Misc 3d at 413}

CPLR 2221 (e) (2) provides that a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination. The defendant contends that Carpenter constitutes a significant change in the law, as it represents a departure from the United States Supreme Court's prior jurisprudence.

The People argue that Carpenter is not a retroactive change of controlling law that would change the outcome of the judgment herein. They also argue that the court order authorizing the installation of a pen register and trap device in this case does satisfy the Carpenter requirement as it was "effectively a warrant supported by probable cause." The People further maintain that, if Carpenter were to apply retroactively, the exclusionary rule would not apply to the defendant's cell site location information data because the People relied on binding precedent at the time, which held in New York State that obtaining a defendant's CSLI data without a warrant did not violate the Fourth Amendment. In support, the People cite cases in which New York appellate courts have found that defendants had no reasonable expectation of privacy while traveling in public, nor did they have any such reasonable expectation of privacy in information voluntarily disclosed to third parties.^[FN4] Thus, the People argue that applying the exclusionary rule to CSLI data that was collected based on the law at the time would not deter unlawful searches in the future. Finally, they maintain that the defendant's guilt was established notwithstanding the cell site data, as there was overwhelming evidence that he committed the crimes.

In a reply affidavit, defendant contends that the People failed to address the issue of ineffective assistance of counsel in their response to his reargument motion. He reiterates his previously-rejected argument, that trial counsel failed to conduct basic research into the propriety of obtaining CSLI under an order pursuant to the Stored Communications Act (SCA) found in 18 USC § 2703 (d), and failed to challenge the warrantless tracking of his cellular device. Defendant further replied that the violation of his constitutional rights, as{**62 Misc 3d at 414} articulated in Carpenter, cuts against the quantum of evidence that the People characterize as "overwhelming."

In Carpenter v United States (585 US at —, 138 S Ct at 2230) law enforcement obtained location-related data on the defendant's cell phone site record pursuant to a court order issued under the SCA, which required the government to show " 'reasonable grounds [for] believ[ing]' that the records '[were] relevant and material to an ongoing . . . investigation.' " The United States Supreme Court found that the government's acquisition of historical cell site records revealing the aggregated location information of a defendant constituted a search under the Fourth Amendment. The Court noted that "cell phone location information is detailed, encyclopedic, and effortlessly compiled . . . an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI." (Carpenter, 585 US at —, 138 S Ct at 2216-2217.) The Court held that a warrant supported by probable cause must generally be obtained before acquiring such records, and that the showing under the SCA fell "well short of the probable cause required for a warrant." (Carpenter, 585 US at —, 138 S Ct at 2221.)

The Carpenter Court did not specifically address whether its ruling should be applied retroactively and New York State appellate courts have not yet addressed Carpenter's application. Notwithstanding, if Carpenter is to be treated as announcing a new rule under Teague v Lane (489 US 288 [1989]),^[FN5] defendants whoseconvictions became final prior to Carpenter cannot benefit from its holding. (See Chaidez v United States, 568 US 342, 347 [2013] ["Teague makes the retroactivity of our criminal procedure decisions turn on whether they are novel. When we announce a 'new rule,' a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding. Only when we apply a settled rule may a person avail herself of the decision on collateral{**62 Misc 3d at 415} review"].) This defendant's conviction became final well before Carpenter was pronounced, when his application for leave to appeal to the Court of Appeals was denied. (See People v Cutts.)

Consequently, the motion is procedurally barred pursuant to CPL 440.10 (3) (b), which provides that the court may deny a motion to vacate a judgment when the grounds or issues raised in the motion were previously determined on the merits in a prior motion absent a retroactively effective change in the law. Defendant's motion raises claims previously denied by this court, and there is no retroactively effective change in the law to alter such denial.

In the alternative, assuming arguendo that Carpenter does apply retroactively, the result herein would remain unchanged, as the court order in this case was indeed supported by probable cause (unlike the court order in Carpenter) and authorized the wireless company to provide the police with historical as well as real-time cell site information. The order authorized the [*2]installation and use of a pen register and a trap device, including caller identification and cell site information, and indicated that "[p]robable cause has been established to show that GPS/precision location is relevant to an ongoing criminal investigation." (See order dated Aug. 5, 2009, Kevin B. McGrath, Jr., J.) Thus, the order obtained to locate and arrest defendant fully complied with the requirement under Carpenter.

"Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called 'cell sites . . .' Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site . . . Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). Wireless carriers collect and store CSLI for their own business purposes."

An individual's physical movements can be captured through CSLI. (See Carpenter v United States, 585 US —, —, 138 S Ct 2206, 2211-2212 [2018].)