Defendant is charged with one count each of Criminal Using Drug Paraphernalia in the Second Degree (PL Sec. 220.50) and Criminal Possession of a Weapon in the Fourth Degree (PL Sec, 265.01), both Class A misdemeanors, as well as one count of Unlawful Possession of Marijuana (PL Sec. 221.05), a violation.

By motion dated January 13, 2013, Defendant moves to controvert the search warrant.

The Court has reviewed the Court file, Defendant's motion, and the People's Response dated January 25, 2013. The Court has also reviewed the Search Warrant and the Affidavit of Police Officer Joseph Cortez, both dated March 16, 2012; Defendant's initial motion to controvert dated April 25, 2012; the People's Response dated June 6, 2012; and the Order of the Hon. Harold Adler, JSC, dated August 29, 2012.

For the reasons stated below, Defendant's motion is granted to the extent of ordering a hearing pursuant to People v. Alfinito, 16 NY2d 181, 264 NYS2d 243 (1965) and Franks v. Delaware, 438 US 154, 98 S Ct 2624 (1978).

Pursuant to the Affidavit of Police Officer Joseph Cortez dated March 16, 2012, the Officer was "assisting in the execution of a search warrant" on that same date at 2663 Heath Avenue, apartment 8C, Bronx, New York. Officer Cortez states that he was "stationed in the stairwell between the eighth and ninth floors of said location." See, Affidavit of Police Officer Joseph Cortez dated March 16, 2012, p 1-2.

The Officer reports that the Defendant "approached...and attempted to use the stairwell to get downstairs." Officer Cortez "asked for said individual's name and address," and in response, Defendant gave his name, but stated that he lived in the building in "Apt. 9D. Said individual then stated that he lived in Apt. 9C, and finally stated that he lived in Apt. 9B." See, Affidavit of Police Officer Joseph Cortez dated March 16, 2012, p 2.

Officer Cortez then accompanied Defendant to Apartment 9B "to get identification." "(U)pon entering the bedroom of the subject premises, deponent observed on the dresser two large ziplock bags filled with smaller ziplock bags each containing a green leafy substance," which the Officer believed to be marijuana based upon his "training and experience." See, Affidavit of Police Officer Joseph Cortez dated March 16, 2012, p 2.

Based upon these observations, the Officer secured the location, and applied for a search warrant for Apartment 9B of 2663 Heath Avenue. Said search warrant was signed by the Hon. William McGuire, JSC on March 16, 2012.

Upon execution of the search warrant at Apartment 9B, 331 bags of marijuana, 2 scales, and a set of brass knuckles were recovered. Another 10 bags of marijuana were recovered from the Defendant's person.

Pursuant to the order of the Hon. Harold Adler, JSC, dated August 29, 2012, a copy of the Affidavit of Police Officer Joseph Cortez, and the search warrant were provided to Defendant and this Court.

TO CHALLENGE THE SEARCH WARRANT

As a preliminary matter, the Court must determine whether Defendant has standing to challenge the legality of the search. Defendant bears the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises searched. See People v Ramirez-Portoreal, 88 NY2d 99, 108, 643 NYS2d 502 (1996); People v Ponder, 54 NY2d 160, 165, 445 NYS2d 57(1981).

The Criminal Justice Agency Report for this Defendant indicates that the targeted premises is his residence. Further, the People do not contend that Defendant lacks standing to [*3]bring this motion. Accordingly, the Court finds that Defendant has standing to challenge the search as a lawful occupant of the targeted premises.

In the instant matter, Police Officer Cortez states that on March 16, 2012, he was "stationed in the stairwell between the eighth and ninth floors" of 2663 Heath Avenue while his fellow officers were in the process of executing a search warrant for Apartment 8C. At that time, the Officer was approached by the Defendant, who "attempted to use the stairwell to get downstairs." See, Affidavit of Police Officer Joseph Cortez dated March 16, 2012, p 1-2.

Officer Cortez then "asked for said individual's name and address," and in response, Defendant gave his name, but stated that he lived in the building in "Apt. 9D. Said individual then stated that he lived in Apt. 9C, and finally stated that he lived in Apt. 9B." See, Affidavit of Police Officer Joseph Cortez dated March 16, 2012, p 2.

From this factual statement alone, this Court is unable to determine whether or not Officer Cortez had an objective credible reason to approach and "inquir(e) as to (Defendant's) identity." There is insufficient evidence on the face of the Officer's Affidavit to ascertain whether "the attendant circumstances were sufficient to arouse the officers' interest" in the Defendant. See, People v. DeBour, 40 NY2d 210, 220, 386 NYS2d 375 (1976). See, also, Ligon v. City of New York, 2013 WL 71800 (SDNY, 2013) ("Fourth Amendment requires at least a minimal level of objective justification for ...stop...the officer...must be able to articulate something more than an inchoate and unparticularized suspicion or hunch...an individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.")

There is no information presented in the Officer's Affidavit to establish the basis for the Officer's initial stop of the Defendant. All the Defendant is reported to have done is make an effort to descend the stairwell in the building in which he resides.

Accordingly, this Court orders a hearing pursuant to People v. Alfinito, 16 NY2d 181, 264 NYS2d 243 (1965) and Franks v. Delaware, 438 US 154, 98 S Ct 2624 (1978), to determine whether or not Officer Cortez possessed an objective credible reason for his stop and questioning of the Defendant.

This shall constitute the opinion, decision, and order of the Court. [*4]

Dated: Bronx, New YorkMarch 4, 2013

_______________________________Hon. John H. Wilson, JCC