People v. Binion

• Decision Date: 16 November 2012
• Citation: 100 A.D.3d 1514,954 N.Y.S.2d 369,2012 N.Y. Slip Op. 07801
• Parties: The PEOPLE of the State of New York, Respondent, v. David BINION, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1514
954 N.Y.S.2d 369
2012 N.Y. Slip Op. 07801

The PEOPLE of the State of New York, Respondent,
v.
David BINION, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 16, 2012.

[954 N.Y.S.2d 371]

Kimberly J. Czapranski, Interim Conflict Defender, Rochester (Joseph D. Waldorf of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Matthew Dunham of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.

MEMORANDUM:

[100 A.D.3d 1514]Defendant appeals from a judgment convicting him, upon a jury verdict, of four counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[1], [former (4) ] ), one count of attempted criminal possession of a weapon in the third degree (§§ 110.00, 265.02 [1] ) and two counts of criminal possession of a weapon in the fourth degree (§ 265.01 [former (4) ] ). The conviction arose from defendant's possession of guns in his residence and a vehicle in which he was a passenger. During the initial police investigation of a report of shots fired in the vicinity of defendant's residence, a police sergeant and a police officer each had a face-to-face conversation with a different unidentified citizen informant. Facts developed in the investigation and the information provided by the two unidentified citizen informants provided the basis for the issuance of a search warrant for defendant's residence.

Defendant contends the search warrant was not issued upon probable cause and thus that County Court erred in refusing to suppress the guns recovered from his residence by the police. Contrary to defendant's contention concerning the warrant application, the court properly denied his motion for a Franks/Alfinito hearing ( see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667;People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644) because he failed to make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard of the truth, was included by the affiant in the warrant affidavit, and ...[100 A.D.3d 1515][that such] statement [was] necessary to the finding of probable cause” ( Franks, 438 U.S. at 155, 98 S.Ct. 2674;see People v. Tambe, 71 N.Y.2d 492, 504–505, 527 N.Y.S.2d 372, 522 N.E.2d 448). Additionally, at the Darden hearing, the People established the unavailability of the informants despite diligent efforts to locate them ( see People v. Carpenito, 80 N.Y.2d 65, 68, 587 N.Y.S.2d 264, 599 N.E.2d 668). Thereafter, the court properly considered extrinsic evidence of the informants' existence in reaching its determination that the two informants existed ( see People v. Fulton, 58 N.Y.2d 914, 916, 460 N.Y.S.2d 508, 447 N.E.2d 56;cf. People v. Phillips, 242 A.D.2d 856, 856, 662 N.Y.S.2d 875). We note that the court's assessment of the witnesses' credibility at the Darden hearing is entitled to great deference ( see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).

Contrary to defendant's further contention, we conclude that the hearsay information supplied in the search warrant affidavit satisfied the two prongs of the Aguilar–Spinelli test and that the search warrant was issued upon probable cause ( see generally People v. DiFalco, 80 N.Y.2d 693, 696–699, 594 N.Y.S.2d 679, 610 N.E.2d 352). Consequently, we reject defendant's contention that the guns recovered from his residence should have been suppressed.

In contending that the court erred in refusing to suppress the guns found in the vehicle in which he was a passenger, defendant asserts that the stop

[954 N.Y.S.2d 372]

of the vehicle, the pat frisk of his person, his detention at the scene, the search of the vehicle and his arrest were...