People v. Brooks

• Decision Date: 27 July 2017
• Docket Number: 107750.
• Citation: 59 N.Y.S.3d 816,152 A.D.3d 1084
• Parties: The PEOPLE of the State of New York, Respondent, v. Breon J. BROOKS, Appellant.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 1084
59 N.Y.S.3d 816

The PEOPLE of the State of New York, Respondent,
v.
Breon J. BROOKS, Appellant.

107750.

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

July 27, 2017.

59 N.Y.S.3d 817

Robert R. LaLonde, Ithaca, for appellant.

Matthew Van Houten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, LYNCH, ROSE and DEVINE, JJ.

McCARTHY, J.P.

Appeal from a judgment of the County Court of Tompkins County (Rowley, J.), rendered March 18, 2015, convicting defendant upon his plea of guilty of the crimes of criminal possession of a weapon in the

59 N.Y.S.3d 818

second degree and criminal possession of a weapon in the third degree.

In February 2014, the City of Ithaca Police Department identified defendant as a suspect in a series of burglaries and obtained a warrant to place a tracking device on his vehicle. After tracking defendant's movements for several days, the police applied for a second warrant to search defendant's person, residence and vehicle. After the second warrant was issued, the police orally requested that it be amended to include a firearm in the list of items to be seized and to change the number of the apartment to be searched. Upon executing the second warrant, police located a loaded revolver and a box of ammunition in the glove compartment of defendant's vehicle. As a result, defendant was charged by indictment with criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. Defendant moved to suppress the evidence of the weapon, arguing that there was an insufficient basis for issuing the warrants and that the second warrant was unlawfully amended. County Court denied the motion and, thereafter, defendant pleaded guilty to both counts in the indictment and was sentenced, as a second violent felony offender, to seven years in prison with five years of postrelease supervision on the conviction of criminal possession of a weapon in the second degree and to a concurrent prison term of 2 to 4 years on the conviction of criminal possession of a weapon in the third degree. Defendant now appeals, and we affirm.

Defendant's contention that County Court erred in denying his suppression motion is without merit. Initially, we note that defendant's argument challenging the reliability of the information provided by identified citizen informants is unpreserved (see People v. Baptista, 130 A.D.3d 1541, 1543, 13 N.Y.S.3d 759 [2015], lv. denied 27 N.Y.3d 991, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016] ), and, as his omnibus motion failed to dispute any of the facts alleged by police in the warrant applications, County Court properly determined that a Mapp hearing was not necessary (see People v. Battle, 109 A.D.3d 1155, 1157–1158, 971 N.Y.S.2d 627 [2013], lv. denied 22 N.Y.3d 1038, 981 N.Y.S.2d 372, 4 N.E.3d 384 [2013] ; People v. Vanness, 106 A.D.3d 1265, 1265, 965 N.Y.S.2d 227 [2013], lv. denied 22 N.Y.3d 1044, 981 N.Y.S.2d 378, 4 N.E.3d 390 [2013] ). Additionally, we agree with County Court that the challenged search warrants were supported by probable cause. A search warrant approved by a magistrate is presumed valid and will be upheld if the warrant application demonstrates that there was "sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place" ( People v. Pinkney, 90 A.D.3d 1313, 1315, 935 N.Y.S.2d 374 [2011] [internal quotation marks and citation omitted]; see People v. Church, 31 A.D.3d 892, 894, 819 N.Y.S.2d 155 [2006], lv. denied 7 N.Y.3d 866, 824 N.Y.S.2d 611, 857 N.E.2d 1142 [2006] ).

In the first warrant application, the police sought to install an electronic tracking device on defendant's green 1998 Honda Civic sedan for the purpose of tracking his movements in relation to a string of home burglaries. The sworn written application provided that boot prints matching a type worn by defendant were found at multiple homes that had been burglarized. A suspect matching defendant's physical description was also captured on video attempting to use an ATM card that was taken from one of the burglarized homes. Additionally, two witnesses saw a suspect matching defendant's physical description leave the premises of a burglarized home,

59 N.Y.S.3d 819

and a police officer, that same day, saw defendant wearing clothing that matched their description of the suspect's...