County Court, Orange County, December 6, 2017

Edward Bruno, Pine Bush, for defendant.

David M. Hoovler, District Attorney, Goshen (Matthew Healy of counsel), for plaintiff.

{**58 Misc 3d at 438}On the 14th day of November 2017, a hearing was held with respect to the above-captioned matter. The hearing addressed issues concerning the suppression of evidence seized [*2]pursuant to a search warrant and an oral statement made by the defendant. Appearing for the People was Matthew Healy, Esq., Senior Assistant District Attorney for the County of Orange. Appearing for the defendant was Edward Bruno, Esq.

Defendant is charged with criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]), criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), criminal possession of marihuana in the second degree (Penal Law § 221.25), criminally using drug paraphernalia in the second degree (Penal Law § 220.50 [2]), and criminally using drug paraphernalia in the second degree (Penal Law § 220.50 [3]). The People called two witnesses: Police Officer Eric Harget from the City of Middletown Police Department and Police Officer Jason Beaudette from the City of Middletown Police Department. Defendant called no witnesses.

On April 20, 2017, at approximately 5:00 a.m. Police Officer Eric Harget was on duty and was assigned to the Narcotics Unit of the City of Middletown Police Department. At said date and time Officer Harget reported to 41 Woodlake Drive, Middletown, New York to execute a search warrant on said premises. The target of the search warrant was J'Min Ward.

As a culmination of a major narcotics investigation solely conducted by the City of Middletown Police Department, Police Officer Eric Harget drafted a search warrant and served as the affiant on the search warrant application. The search warrant was addressed, for execution purposes, to "any police officer of the City of Middletown Police Department, any police officer, any member of the Orange County Sheriff's Office Special Operations Group ['SOG'], and the New York State Police." At the time that Police Officer Harget drafted the search warrant, he believed that the SOG team was made up exclusively of police officers. The SOG team actually includes both police officers and correction officers.

On April 20, 2017, the City of Middletown Police Department executed the search warrant with the assistance of the SOG team. The City of Middletown Police Department searched the house, and discovered and recovered all of the evidence seized{**58 Misc 3d at 439} pursuant to the search warrant, including cocaine, marihuana, drug packaging materials, scales, and U.S. currency. The SOG team's role was limited to assisting the City of Middletown Police Department by gaining entry to the premises and in securing the occupants of the residence so that the City of Middletown Police Department could safely execute the warrant. There was no testimony that any members of the SOG team who assisted the City of Middletown Police Department on that day were correction officers, as opposed to police officers. The City of Middletown Police Department does not have its own entry team.

The SOG team was inside the house for approximately five minutes. At all times, members of the City of Middletown Police Department were within the curtilage of the house, approximately 20 feet from the SOG team. As soon as the SOG team secured the occupants in the house, the SOG team exited the premises so the members of the City of Middletown Police Department could safely execute the search warrant by conducting the search of the premises and seizing any and all evidence. The SOG team did not search for or seize any evidence.

While the City of Middletown Police Department was executing the search warrant, [*3]J'Min Ward stated to Police Officer Jason Beaudette, "That's it, you got me, that's crack, the crack is mine." J'Min Ward's statement was spontaneous and not made in response to any question by any member of law enforcement. Approximately 30 minutes prior to J'Min Ward's spontaneous utterance, Officer Harget had Mirandized J'Min Ward. At no time did any member of law enforcement make a threat or promise or use force or coercion to induce J'Min Ward to make a statement.

Correction officers are not police officers; they are peace officers who are without authority to "execute" search warrants (CPL 2.10 [25]; 2.20, 690.45 [3]). The search warrant was sought by, addressed to, and executed by police officers of the City of Middletown Police Department.

The SOG team, though erroneously listed in the search warrant, did not execute the search warrant. The SOG team merely assisted the City of Middletown Police Department for approximately five minutes by gaining entry to the premises and securing the scene (see e.g. People v Charlier, 136 AD2d 862 {**58 Misc 3d at 440}[3d Dept 1988]; People v Cote, 124 AD2d 1000 [4th Dept 1986], lv denied 69 NY2d 745 [1987]; People v Brancato, 101 Misc 2d 264 [1979]; People v Gamble, 122 Misc 2d 960 [1984]; People v Boyd, 123 Misc 2d 634 [1984], affd 127 AD2d 1013 [1st Dept 1987], lv denied 69 NY2d 877 [1987]). The SOG team gained entry to the residence to safely secure the persons therein while the City of Middletown Police Department remained within the curtilage of the house so those officers could safely enter the residence and execute the search warrant. All of the evidence was searched for, discovered by, and seized by police officers of the City of Middletown Police Department. The search, discovery, and seizure all were conducted pursuant to a lawfully issued search warrant addressed to police officers of the City of Middletown Police Department. The erroneous listing of the SOG team on the search warrant did not invalidate it. There was "no showing of any prejudice to the defendant and no evidence of any intentional and deliberate disregard of [any] statute" (People v Barfield, 151 Misc 2d 1031, 1033 [1991]).

The oral statement made by J'Min Ward was a spontaneous utterance and not made in response to any question, threat, or promise by a member of law enforcement. The oral statement made by J'Min Ward was made after Mr. Ward had been Mirandized.

Based upon the facts and circumstances of this case, "and mindful of the strong preference in favor of upholding search warrants," the defendant's motion to suppress the physical evidence seized pursuant to the search warrant is denied (People v Graham, 220 AD2d 769, 772 [2d Dept 1995], citing People v Hanlon, 36 NY2d 549 [1975]).

Defendant's motion to suppress the oral statement made by the defendant to Police Officer Beaudette is denied. The defendant's oral statement was spontaneous and was made after the defendant had been Mirandized.