Defendant moves for an order, inter alia, suppressing evidence seized following the execution of a search warrant for a cell phone recovered from his person subsequent to his arrest which he claims was defective insofar as the warrant "relied on material statements that were false or that were made with reckless disregard for the truth ... [and] relied on illegally-obtained evidence." After a review of the moving papers, the People's opposition, the pertinent Supreme Court file and relevant statutory and caselaw authority, defendant's motion is decided in accordance herewith.

In summary, on December 14, 2012, following the presentation of evidence before the Grand Jury, including the testimony of defendant, who denied possessing the loaded firearm recovered by the police from inside the radiator defendant was standing near/next to within a New York City Housing Authority Building, the sole charge of Criminal Possession of a Weapon in the Second Degree [PL §265.03(3)] was submitted to the Grand Jury for its consideration. Significantly, the Grand Jury heard that as the arresting officer was shutting off and securing one of the three cell phones recovered from defendant as part of the arrest and evidence vouchering process, the officer noticed a photograph of a firearm on the phone's viewing screen and recognized the gun in the photograph as the same gun recovered from the radiator and was able to distinguish the serial number of the gun in the photograph so displayed as matching the serial number of the recovered gun; defendant denied any knowledge of photographs of a firearm contained on his cell phone. The officer also testified that upon first encountering him, defendant stated "the gun was his boys." This charge was dismissed by the Grand Jury on December 14, 2012. Subsequently, the People moved, ex parte, for permission from the Court (Balter, J.) to resubmit the charge of Criminal Possession of a Weapon in the Second Degree, which was then done before the same Grand Jury on December 21, 2012. There is no dispute that at this second presentation, additional testimonial as well as photographic evidence was [*2]proffered by the People, obtained through the execution of a search warrant issued December 20, 2012 for the contents of defendant's "HTC Samsung" cell phone (Balter, J.), based upon the supporting affidavit of the arresting officer.^[FN1] The officer testified at the second Grand Jury proceeding he recovered photographs of: defendant; the gun recovered from the radiator — which photograph he had previously observed while shutting off the cell phone — as well as an enlarged version thereof to highlight the serial number of the gun; and certain items of clothing which the officer recognized as those defendant had been wearing at the time of his apprehension, all from the "HTC Samsung" cell phone seized from defendant's person.^[FN2]

With regard to the photograph of a gun obtained from the "HTC Samsung" cell phone recovered from defendant's person by the arresting officer, the essence of defendant's claim here is the officer illegally searched that cell phone and retrieved the photograph prior to obtaining a search warrant authorizing the officer to do so. The People assert the officer's initial observance of the disputed photograph was inadvertent, and occurred only because the photograph was displayed on the "HTC Samsung" cell phone's screen when the officer pushed a button to turn off power, thereby enabling the officer to recognize the gun in the photograph as the same gun recovered from the radiator at the scene of defendant's arrest. At the heart of defendant's claim is his assertion that such a random photographic display is impossible, as is the officer's stated ability to recognize the gun in the cell phone photograph during whatever period of time it had been displayed.

Notably, although the People request defendant's motion be denied in its entirety — without addressing defendant's brief challenge to the voluntariness of the statement made to the police as embodied in the People's January 9, 2012 Voluntary Disclosure Form — the People's stated belief is that "without a demonstration, it is difficult to understand how the photo can [be seen] through the simple process of shutting down the defendant's cellphone." Indeed; the Court agrees "the process of shutting the defendant's cellphone off and how Officer T[] [*3]was able to see the photo without searching," as well as the officer's stated ability to discern the serial number on the gun in the photo as matching the serial number of the recovered gun, requires further explanation. The People request the opportunity to do so, and in light of the apparent inconsistencies or seeming contradictions raised by the defense in the attack upon the veracity of the police officer/search warrant affiant, summary denial of defendant's application would be imprudent and appropriate inquiry at a hearing should be had. Therefore, under the unusual circumstances of this case, where it cannot be said there are no facts alleged which put the police officer's sworn affidavit statements in issue, the Court hereby directs that a pretrial hearing be conducted in accordance with People v. Alfinito, 16 NY2d 181 (1965), together with a Huntley hearing, requested by the defense and unopposed by the People, with respect to the voluntariness of statements defendant made to the police, on a mutually agreed upon date and time. See, generally, People v. McGeachy, 74 AD3d 989 (2nd Dept.), lv denied, 15 NY3d 853 (2010); People v. Gaviria, 183 AD2d 913 (2nd Dept. 1992), lv denied on reconsideration, 81 NY2d 1014 (1993).

The Court has reviewed the defendant's remaining arguments and finds them to be without merit.

Accordingly, it is hereby

ORDERED, that defendant's motion is granted only to the extent that a combined pretrial Alfinito/Huntley hearing shall be held on a mutually agreed upon date and time.

ENTER

_____________________________Dated: February 19, 2014ELIZABETH A. FOLEY, J.S.C.