Defendant's motion is granted to the limited extent that the Court orders an in camera inspection of all devices seized from Defendant on the date of his arrest.

In this motion, Defendant seeks return of his property, or alternatively, production of all recordings contained on each device recovered at the time of Defendant's arrest on April 21, 2010. Defendant, citing Brady v. Maryland, 373 U.S. 83 (1963), contends that the devices contain evidence necessary to its defense. Specifically, Defendant claims that his camera "contains additional pictures of the Department of Public Works ("D.P.W.") during the month of April, 2010", as well as video on Defendant's I-Phone. (Affidavit of Amy L. Bellantoni at * *8 and 9). Defendant further alleges that the pictures, videos and audio recordings contain necessary evidence from dates prior to the date of his arrest, when it is alleged that he was at the Mount Vernon D.P.W. and was not arrested (Id. at *10) (Emphasis added).

The Defendant Samuel Rivers is charged with one count of Criminal Trespass in the Third Degree, a violation of Penal Law * 140.10, arising from events occurring on April 21, 2010. This case was transferred to the City Court of New Rochelle from Mount Vernon City Court by Order of the Hon. Alan Scheinkman, dated June 9, 2010 after all Mount Vernon City [*2]Court Judges recused themselves. Defendant first appeared in New Rochelle City Court on or about June 30, 2010.

On the date of Defendant's arrest, the police seized from him the following equipment: Pure Digital Video Camera, Canon Power Shot Digital Camera, Apple I-Phone cellular telephone and Olympus Digital Voice Recorder. On October 5, 2010, a search warrant was signed by the Hon. Preston S. Scher, former New Rochelle City Court Judge, directing the search of the above-listed equipment, currently held as evidence at the Mount Vernon Police Department, for "[a]ny and all digital recordings taken on or about April 21, 2010 during, or in close temporal proximity to, the Defendant's actions constituting the crime of Criminal Trespass in the Third Degree at 33 Canal Street in the City of Mount Vernon". (People's Affirmation in Opposition, Exhibit, Search Warrant at * a).

While the Court certainly agrees with Defendant, that "[a] criminal Defendant is entitled to all information, regarding evidence which may be favorable to the Defendant, relating to guilt or punishment, or in mitigation of any of the offenses charged or relating to the suppression of evidence, Brady, supra, the search warrant obtained by the People merely provides for the search of "any and all digital recording taken on or about April 21, 2010 during, or in close temporal proximity to, the Defendant's actions." (Id.)(Emphasis added). Pictures taken during the month of April 2010 and on dates prior to April 21, 2010 are clearly not authorized by the search warrant. Thus, the People are not in lawful possession of same.

It appears that Defendant was given the opportunity to consent to the search of said devices as far back as September 13, 2010 and during the most recent conference held on June 1, 2011, but has inexplicably declined to agree to consent. The Court dismisses Defendant's claim that the People have conspired to parse out and splice portions of the recordings that the People believe are relevant and material to Defendant's defense. In view of the lack of Defendant's consent to a more expansive search, the Court declines to order the People to conduct a warrantless search in contravention of Defendant's Fourth Amendment rights.

Turning now to the Defendant's request for return of the equipment seized at the time of arrest, the Court finds that the Defendant's characterization that he "has been deprived of

his property by the government for over a year now", Affirmation of Amy L. Bellantoni at *17, to be disingenuous at best, given the procedural history of this matter. This case did not originate in this Court but was transferred from another city court. The People announced readiness on April 21, 2011 and have acknowledged repeatedly that they have, turned over all Brady material in their possession. The Court notes that this matter has been adjourned for two consecutive jury terms at the Defendant's request after the People announced their readiness and a jury was available on both occasions.

Despite the foregoing, this Court is cognizant that "while a prosecutor must have some discretion in determining which evidence must be turned over to the defense", where as here, there was some basis for argument that material in the possession of the prosecutor might be exculpatory, deference to the prosecutor's discretion must give way, and the duty to determine the merits of the request for disclosure then devolves on the trial court". (People v. Consolazio, 40 NY2d 446 (1976), quoting People v. Fein, 18 NY2d 162, 171-172 [1966]). Here, the People [*3]concede that "use of the recording without the devices at trial may be sufficient". (People's Affirmation in Opposition, Memorandum of Law at p. 2). When weighing the People's claim of absolute prosecutorial discretion against Defendant's claims in pre-jury conferences that the devices contain exculpatory evidence regarding a material element of the charged violation, the Court is duty bound to conduct an in camera inspection to determine the existence or lack thereof of any Brady material.

Based on the foregoing, the Court hereby grants Defendant's motion to the limited extent of ordering an in camera inspection of all devices seized from Defendant on the date of his arrest.The parties are directed to appear in Court on June 20, 2011, at 9:30 a.m. for the next jury term, when said date for in camera inspection by the Court will be determined.

The foregoing constitutes the Decision and Order of the Court.

Dated: June 16, 2011

New Rochelle, New York

Hon. Susan I. Kettner

City Court Judge