People v Garner

Supreme Court, Queens County

Decided on April 13, 2026

Ind. No. 70089-2026

Gary F. Miret, J.

The defendant, Calvin Garner, has submitted an omnibus motion, dated March 15, 2026, seeking: inspection of the Grand Jury minutes and dismissal or reduction of the indictment; preclusion of statement evidence; a reliability hearing; an order controverting the search warrant; Sandova/Luck relief; and leave to file further motions. The People's response, dated April 2, 2026, consents to some of the relief sought and opposes other relief. The court decides the motion as follows.

INSPECTION AND DISMISSAL OR REDUCTION

Defendant's motion to inspect the grand jury minutes is granted. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to the requirements set forth in CPL � 200.50. The instructions were not defective as a matter of law and the proceedings were proper. Upon inspection of the grand jury minutes and exhibits, this court found the evidence to be legally sufficient to support all counts of the indictment. Accordingly, the defendant's motion to dismiss or reduce the indictment is denied.

PRECLUSION OF EVIDENCE

Defendant's motion to preclude any unnoticed statement evidence is denied as moot as the People have indicated that such statements do not exist. Should the existence of unnoticed statements evidence come to light, the defendant is granted leave to move for its preclusion at that time.

RELIABILITY HEARING PURSUANT TO PERDUE

The defendant also moves for a reliability hearing pursuant to People v Perdue, 41 NY3d 245 (2023), asserting that the People intend to call police witnesses who have not previously identified him in any pretrial identification procedure and who may make a first-time, in-court identifications at trial. The People have not served notice of any pre-trial identification procedure pursuant to CPL � 710.30, nor have they served notice of an intent to elicit a first-time, in-court identifications from Detectives Dunn or Kullak or from Police Officer Clair. Based on disclosures in the People's February 17, 2026, certificate of compliance, however, the defendant is aware that these witnesses may be asked to identify him for the first time at trial and therefore seeks a pretrial reliability hearing.

The indictment charges the defendant with two street-level narcotic sales � on July 29 and September 18, 2025 � and ten additional counts arising from the execution of a search warrant on December 10, 2025. In opposing the defendant's application, the People focus exclusively on the December 10 charges and the officers who observed the defendant inside his home during the execution of the warrant. The People do not address the July 29 or September 18 sales or the possibility that the officers involved in those incidents may be asked to identify the defendant at trial for the first time. Because the defendant's application is directed those two street-sale incidents, the People's failure to address them leaves the reliability concerns raised by Perdue unresolved.

Detective Dunn is the only witness who testified in the grand jury that he observed the defendant engage in narcotic sales on July 29 and September 18, 2025. Dunn also provided sworn testimony before the issuing judge in support of the search warrant, stating that he had arrested the defendant on July 22, 2025, and that the defendant was a Black male with a beard. While this provides some descriptive detail, it remains limited and generalized. Dunn did not describe the defendant's height, weight, build, hairstyle, clothing, complexion, or distinguishing features. Nor did he describe the lighting conditions, duration, or circumstances of the July 22 arrest other than to say it was for narcotics, or explain what features enabled him to recognize the defendant during the later observations. In the grand jury, Dunn testified that he observed the defendant from approximately twenty feet away in daylight on both dates, but again provided no descriptive details of the defendant's appearance during either sale. There is no corroborating evidence of either transaction � no video, photographs, controlled buy, marked money, or other independent proof tying the defendant to the sales. Thus, although Dunn asserts prior familiarity, the record contains no meaningful detail from which the court can assess the quality of that familiarity or the reliability of any first-time, in-court identification he may be asked to make.

Detective Kullak, who was present with Dunn during the July 29 observation, did not testify in the grand jury, and the record contains no information regarding his opportunity to observe the defendant, whether he had any prior familiarity with the defendant, whether he could [*2]describe the defendant's appearance, or what basis he would have for identifying the defendant at trial. The People's certificate of compliance lists Kullak as a witness, and the defendant reasonably anticipates that the People may seek to elicit a first-time, in-court identification from him. On the present record, however, there is no factual foundation from which the court can evaluate the reliability of such an identification.

Police Officer Clair's involvement is even more limited. Clair did not witness either street sale. His only connection to the defendant is a brief, unrelated encounter on July 11, 2025 at 4:45 a.m., during which the defendant stated his address. The record contains no information about the lighting conditions, duration, or circumstances of that encounter, or whether Clair had a clear view of the defendant's face. If the People were to elicit a first-time, in-court identification from Clair, it would rest on an undeveloped and potentially unreliable basis.

In People v Patterson, 240 AD3d 521 (2d Dept 2025), the court affirmed the trial court's decision to allow a first-time, in-court identification because the record contained independent assurances of reliability, including the identification of the defendant by one of the complainants in a show-up identification procedure, and the defendant's DNA found on the gun used during the robbery and the complainants' property found on the defendant's person. None of these assurances are present here. The absence of descriptive detail, the undeveloped nature of Dunn's claimed familiarity, the lack of any information regarding Kullak's ability to identify the defendant, and the tenuous basis for any identification by Clair all weigh heavily against permitting first-time, in-court identifications without further inquiry.

Courts applying Perdue have granted reliability hearings under similar circumstances. In People v Armstrong, 84 Misc 3d 1212(A) (Sup Ct, Kings County 2024), the court ordered a hearing where the detective's claimed familiarity with the defendant was insufficiently detailed. Likewise, in People v Griffin, 83 Misc 3d 1268(A) (Crim Ct New York County 2025), People v Honyghan, 88 Misc 3d 1221(A) (Crim Ct New York County 2026), and People v Clase, 88 Misc 3d 1231(A) (Crim Ct New York County 2026), courts granted Perdue reliability hearings where the record lacked adequate assurances of reliability for proposed first-time, in-court identifications by witnesses.

Given the limited descriptive information, the absence of corroboration, the undeveloped nature of the claimed familiarity with the defendant, and the People's failure to address the identification issues arising from the July 29 and September 18 sales, the court finds the defendant has raised a legitimate question regarding the reliability of any first-time, in-court identifications by Detectives Dunn and Kullak or Officer Clair. Under Perdue, and the cases applying it, a pre-trial reliability hearing is warranted. The defendant's application for a Perdue reliability hearing is therefore granted.

MOTION TO CONTROVERT

The defendant moves to controvert the search warrant executed on December 10, 2025 at 94-29 199th Street, Queens Couty , and seeks suppression of physical evidence recovered therein. The defendant argues that the warrant was issued without probable because the confidential informant (CI) was allegedly untruthful and there was no nexus between the narcotic sales and his residence. The defendant also requests a hearing pursuant to People v Darden, 34 NY2d 177 (1974).

On December 5, 2025, a search warrant was issued based on the sworn affidavit of a Detective Michael Dunn and the sworn, in-person testimony of a confidential informant ("CI").

The evidence presented to the issuing judge established that on November 10, 20, and 28, [*3]2025, the CI contacted a cellphone number that the police had independently verified as registered to the defendant. Each time, the defendant directed the CI to a specific meeting location. Meanwhile, Detective Dunn was simultaneously surveilling the defendant's residence at 94-29 199th Street and observed the defendant leave his home shortly after each call. The CI then met the defendant at the designated location and purchased narcotics. On more than one occasion, a police officer observed the defendant return directly to his residence after the sale.

The CI personally appeared before the issuing judge, testified under oath, and was subject to the judge's direct observation. The issuing judge was therefore entitled to credit the CI's testimony in determining whether probable cause existed. (See People v Wheatman, 29 NY2d 337, 345 [1971] [magistrate may rely on sworn testimony of informant who appears in person]; People v Hicks, 38 NY2d 90, 92-93 [1975]) Nothing in the record suggests that the CI's testimony was unreliable or that the issuing judge was misled.

The defendant argues that the warrant lacked probable cause because the affidavit did not establish a sufficient connection between the narcotic sales and his residence. The record demonstrates a clear and repeated pattern linking the defendant's drug-selling activity to his home.

On each of the three controlled buys, none of which were charged in the indictment, the CI called the defendant before the sale, and the police independently verified that the phone number used belonged to the defendant. A detective observed the defendant leave his residence within minutes of receiving the CI's call, travel directly to the meeting location, and engage in a narcotics transaction. On multiple occasions, the defendant returned directly to his residence immediately after the sale. The CI and Officer Clair independently also confirmed that the defendant lived at the target address. Taken together, this consistent pattern � three times in less than three weeks � creates a strong temporal and spatial connection between the defendant's residence and his drug-selling activity, and supports a reasonable and powerful inference that narcotics or related contraband are stored at that residence.

The defendant asserts that the CI was untruthful. This argument fails as a matter of law. A defendant may challenge the truthfulness of the affiant's statements, but may not challenge the truthfulness of what a third party told the affiant. (See People v Tambe, 71 NY2d 492, 504 [1988] ["The veracity of the informant's statements to the police is not the issue; the question is whether the affiant was truthful in reporting what he was told."]) The relevant inquiry is whether the affiant knowingly or recklessly included false information in the warrant application � not whether the CI was truthful in speaking to the police.

Here, the defendant does not allege that the affiant mispresented anything the CI said, nor does he offer any factual basis suggesting that the affiant acted dishonesty or recklessly. In any event, the CI's statements were corroborated by police surveillance, subscriber verification of the defendant's cellphone, and the recovery of narcotics after each controlled buy. The defendant's conclusory assertion that the CI was untruthful does not undermine the validity of the warrant.

A Darden hearing is unnecessary because the CI personally appeared before the issuing judge and testified under oath. The CI's identity and existence were known to the court, and the judge had the opportunity to assess the CI's credibility directly. Under these circumstances, a Darden hearing is not required.

The search warrant was supported by ample probable cause. The CI's sworn testimony, corroborated by police surveillance and independent corroboration, provided a reliable basis for the issuing judge's determination. The defendant's claims regarding nexus, credibility, and the [*4]need for a Darden hearing are without merit.

SANDOVAL/LUCK RELIEF

The defendant's request for a Sandova/Luck hearing and, ultimately, the preclusion of evidence of prior bad acts is referred to the trial court. The People are reminded that the disclosure of Sandoval/Luck evidence that they intend to introduce at trial shall be made in accordance with the time frame set forth in CPL � 245.10(1)(b) and 245.20(3).

ORDER TO COUNSEL

This court issues this order as both a reminder and a directive that counsel uphold their constitutional, statutory and ethical responsibilities in the above-captioned proceeding:

To the Prosecutor:

The District Attorney and the Assistant responsible for the case, or, if the matter is not being prosecuted by the District Attorney, the prosecuting agency and its assigned representative, is directed to make timely disclosures of information favorable to the defense as required by Brady v Maryland, 373 US 83 (1963), Giglio v United States, 405 US 150 (1972), People v Geaslen, 54 NY2d 510 (1981), and their progeny under the United States and New York State constitutions, and pursuant to Criminal Procedure Law (CPL) article 245 and Rule 3.8(b) of the New York State Rules of Professional Conduct, as described hereafter.

• The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies' files directly related to the prosecution or investigation of this case.

• Favorable information could include, but is not limited to:

a) Information that impeaches the credibility of a testifying prosecution witness, including (i) benefits, promises, rewards or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case; (ii) a witness's prior inconsistent statements, written or oral; (iii) a witness's prior convictions and uncharged criminal conduct; (iv) information that tends to show that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and (v) information that tends to show impairment of a witness's ability to perceive, recall, or recount relevant events, including impairment of that ability resulting from mental or physical illness or substance abuse.

b) Information that tends to exculpate, reduce the degree of an offense, or support a potential defense to a charged offense.

c) Information that tends to mitigate the degree of the defendant's culpability as to a charged offense, or to mitigate punishment.

d) Information that tends to undermine evidence of the defendant's identity as a perpetrator of a charged crime, such as a non-identification of the defendant by a witness to a charged crime or an identification or other evidence implicating another person in a manner that tends to cast doubt on the defendant's guilt.

e) Information that could affect in the defendant's favor the ultimate decision on a suppression motion.

• Favorable information shall be disclosed whether or not it is recorded in tangible form, [*5]and irrespective of whether the prosecutor credits the information.

• Favorable information must be timely disclosed in accordance with the United States and New York State constitutional standards, and in accordance with the timing provisions of CPL article 245. The prosecutor is reminded that the obligation to disclose is a continuing one. Prosecutors should strive to determine if favorable information exists. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in CPL 245.10(1).

• A protective order may be issued for good cause pursuant to CPL 245.70 with respect to disclosures required under this order.

• Failures to provide disclosure in accordance with CPL Article 245 are subject to the available remedies and sanctions for nondisclosures pursuant to CPL 245.80.

• Only willful and deliberate conduct will constitute a violation of this order or be eligible to result in personal sanctions against a prosecutor.

To Defense Counsel:

Defense counsel, having filed a notice of appearance in the above captioned case, is obligated under both the New York State and the United States Constitution to provide effective representation of defendant. Although the following list is not meant to be exhaustive, counsel shall remain cognizant of the obligation to:

a) Confer with the client about the case and keep the client informed about all significant developments in the case;

b) Timely communicate to the client any and all guilty plea offers, and provide reasonable advice about the advantages and disadvantages of such guilty plea offers and about the potential sentencing ranges that would apply in the case;

c) When applicable based upon the client's immigration status, ensure that the client receives competent advice regarding the immigration consequences in the case as required under Padilla v Kentucky, 559 US 356 (2010);

d) Perform a reasonable investigation of both the facts and the law pertinent to the case (including as applicable, e.g., visiting the scene, interviewing witnesses, subpoenaing pertinent materials, consulting experts, inspecting exhibits, reviewing all discovery materials obtained from the prosecution, researching legal issues, etc.), or, if appropriate, make a reasonable professional judgment not to investigate a particular matter;

e) Comply with the requirements of the New York State Rules of Professional Conduct regarding conflicts of interest, and when appropriate, timely notify the court of a possible conflict so that an inquiry may be undertaken or a ruling made;

f) Possess or acquire a reasonable knowledge and familiarity with criminal substantive, procedural and evidentiary law to ensure constitutionally effective representation in the case; and

g) When the statutory requirements necessary to trigger required notice from the defense are met (e.g., a demand, intent to introduce particular evidence, etc.), comply with the statutory notice obligations for the defense as specified in CPL 250.10, 250.20, and 250.30.

LEAVE TO FILE FURTHER MOTIONS

The branch of the motion requesting leave to file additional motions is granted to the extent recognized by CPL 255.20(3).

This constitutes the decision and order of the court.

The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

April 13, 2026

GARY F. MIRET, J.S.C.