STATE OF NEW YORK COUNTY OF ERIE SUPREME COURT THE PEOPLE OF THE STATE OF NEW YORK, DECISION AND ORDER -against- Indictment No. 01177-2016 G. STEVEN PIGEON, Defendant. The instant matter comes on before the Court upon the March 20, 2017, Notice of Motion seeking reconsideration of the February 24, 2017, Supplemental Decision and Order of this Court as it pertains to suppression of evidence seized pertaining to the defendant’s Google accounts and his cell phone. The Notice of Motion was accompanied by the Defendant's Memorandum of Law In Support of Defendant's Motion for Reargument, also dated March 20, 2017. The People responded by the March 27, 2017, People’s Memorandum of Law in Opposition to the Defendant's Motion for Leave to Reargue the Court’s Decision and Order dated February 24, 2017. The defendant thereafter submitted his March 31, 2017, Defendant’s Reply Memorandum of Law in Support of Defendant’s Motion for Reargument. Additionally, the defendant moved, by Notice of Motion and Affidavit of Paul J. Cambria, Esq., dated April 5, 2017, to suppress the results of the Google search warrants as having been executed in contravention of Criminal Procedure Law Section 690.30. The People responded by filing the People’s Affirmation in Opposition to Defendant’s Motion with the Erie County Clerk’s Office on April 18, 2017.' The defendant responded by the April 27, 2017, Reply Affidavit of Paul J. Cambria, Esq. On April 19, 2017, the parties appeared in Erie County Supreme Court and were heard, ‘Subsequently, the People submitted a letter dated May 2, 2017, addressing various issues raised by the defendant at oral argument and the defendant responded by letter dated May 3, 2017. The following reflects the Decision and Order of this Court: Initially, this court incorporates by reference herein the factual findings as set forth in the Decision and order of October 20, 2016, and the Supplemental Decision and Order of February 24, 2017. ‘The issues raised by the defendant will be addressed in seriatim within the body of this Decision. I: March 20, 2017, Motion for Reargument "This particular reply was signed in April 2017 but the actual date was not noted therein.A motion to reargue is specifically addressed at Section 22221 (d) of the Civil Practice Law and Rules. That particular provisions provides as follows: (@) A motion for leave to reargue: 1. Shall be identified specifically as such; 2. Shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. Shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. With respect to the defendant's March 20, 2017, motion to reargue, such is both timely made and. does not seek to introduce facts not offered in the previous motion. The singular issue which may be raised with respect to any statutory infirmity is that the defendant's notice of motion identified the present pleading as one seeking reconsideration, rather than reargument, However, such failure, if it be such, is truly a distinction without a difference under the present circumstances. Having considered the substance of the defendant's motion to reargue with respect to the Google search warrants as well as the search of the defendant's cell phone, this court denies the defendant's motion to reargue as this court did not overlook or misapprehend the law applicable to the present matter. (Subsections I and II of the defendants Memorandum of Law). However, with respect to Subsection Il of the defendant's Memorandum of Law seeking to reargue this Court’s decision pertaining to its declination of further disclosure pertaining to Counts One and Two of the indictment charging Bribery in the Second and Third Degree, respectively, this court grants the defendant’s motion to reargue. Having now granted that aspect of the defendant’s motion, and upon a review of the relevant statutory and decisional law, as well as taking into consideration respective counsel’s argument, the People are now directed to provide a Bill of Particulars setting forth the factual conduct which forms the basis for these two particular counts. Il: April 5, 2017, Motion to Suppress ‘The defendant now seeks suppression with respect to the Google search warrants dated May 27, 2015, and March 2, 2016, based upon the receipt of the returns filed with respect to the execution of these particular warrants.” The release of the returns to the defendant had been ordered by this court within its Supplemental Decision and Order dated February 24, 2017. >This court does not find the instant motion to be a reargument of the court's prior decision. Rather, based upon the retums ordered to be released to the defendant pursuant to the February 24, 2017, Supplemental Decision and Order, information then became known to the defendant whieh formed the basis for the instant motion,Defendant takes the position that the evidence derived from the execution of these warrants should be suppressed given the People’s failure to have executed such within the relevant statutory time frame. In particular, the defendant asserts that the People’s failure to have executed these warrants within ten days of their issuance renders the results of such searches suppressible. Criminal Procedure Law Section 690.30(1) provides as follows: A search warrant must be executed not more than ten days after the date of issuance and it must thereafter be returned to the court without unnecessary delay. While the courts have found that undue delay in filing the return with the court is a ministerial act which will not effect the integrity of the warrant, the execution of the warrant within the prescribed time period is strictly construed. (See People v. Frange, 109 AD2d 802, 2 Dpt. 1985; People v. Jacobowitz, 89 ad2d 625, 2™ Dpt. 1982). In the present proceeding the warrants were signed by Judge Pietruszka on May 27, 2015, and March 2, 2016, with respect to the defendant's Google email accounts. This court’s Supplemental Decision and Order of February 24, 2017, found that the warrants were not executed upon delivery by email of the warrants to Google. Rather, the execution occurred within the geographic confines of New York State upon receipt of the medium provided by Google. The People’s Affirmation in Opposition filed on April 18, 2017, indicates that the digital information obtained from Google with respect to the May 27, 2015, search warrant was received, at the earliest, on June 18, 2015, and June 19, 2015. (See Paragraph 5, thereof). This affirmation further confirms that the information received from Google with respect to the March 2, 2016, search warrant occurred on or about March 15, 2016, with a duplicated “useable format” production by Google having been received on or about March 29, 2016. (Paragraph 9, thereof). While it is true that these particular search warrants had been delivered to Google on June 3, 2015, and March 4, 2016, respectively, according to the referenced Affirmation, which was well within the ten day permitted period for execution of the warrant pursuant to CPL Section £690,30(1), the execution of the warrants did not occur until receipt by law enforcement of the requested information, At the earliest the information obtained with respect to the May 27, 2015, search warrant was not able to be examined by law enforcement until June 18, 2015, some ‘twenty-two days after Judge Pietruszka had issued this particular warrant. So, too, with respect to the March 2, 2016, search warrant, the earliest date at which the material could have been ‘examined in New York State would have been March 15, 2016, which was approximately thirteen days after its issuance. The premise upon which this court found that the Erie County Court had authority to issue a search warrant pursuant to the provisions of 18 USCA 2703 was compliance with the procedural components of New York’s Criminal Procedure Law and, in particular, Article 690. Section 2703(a) provides that a state search warrant may utilize the SCA as a vehicle by which to ‘exercise extraterritorial jurisdiction if the state authorities comply with the requisite state procedural aspects with respect to the issuance of search warrants. However, it cannot be said that the state authorities complied with state procedure as the execution of the search warrantoccurred beyond the ten day proscription as contained within CPL Section 690.30(1) as to both of the warrants pertaining to the defendant’s Gmail accounts.’ The search warrant of May 27, 2015, had to be executed by not later than June 6, 2015. The search warrant of March 2, 2016, had to be executed by not later than March 12, 2016. Here, given the temporal aspects of the issuance and execution of the search warrants, itis the finding of this court that the warrants were not executed within the procedural directives contained in CPL Section 690.30(1). The remedy to have addressed the temporal jeopardy associated with the execution of the search warrants would have been to have obtained an extension by which to do so. As such, given the foregoing, the motion by the defendant is granted and the evidence obtained from the identified Google accounts obtained pursuant to the May 27, 2015, and March 2, 2016, warrants is suppressed. Enter. DATED: June 29, 2017 ‘Wampsville, New York - Cerio, Jr. ourt Justice “This court takes no issue with the time in which the analysis of the defendant’s email records had taken. Any delay in the analysis of such records was wholly attributable to the People’s obligation to insure that any attomney/elient privileged communications were not inadvertently reviewed by law enforcement and the process employed was consented to by defendant's counsel. It is the finding of this court that the People acted in good faith at all times with respect to the analysis of the defendant’s email records. However, the issue is not with respect to how long the process of analysis took place or whether the People acted in good faith but, rather, when the information was actually received from Google by state law enforcement with respect to the warrants at issue.