People v. Brown

• Decision Date: 27 December 2018
• Docket Number: 109169
• Citation: 167 A.D.3d 1331,90 N.Y.S.3d 380
• Parties: The PEOPLE of the State of New York, Respondent, v. Theodore BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1331
90 N.Y.S.3d 380

The PEOPLE of the State of New York, Respondent,
v.
Theodore BROWN, Appellant.

109169

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

Calendar Date: November 16, 2018
Decided and Entered: December 27, 2018

Justin C. Brusgul, Voorheesville, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Lucas W. Finley of counsel), for respondent.

Before: Garry, P.J., McCarthy, Egan Jr., Devine and Clark, JJ.

MEMORANDUM AND ORDER

Clark, J.

167 A.D.3d 1331

On October 31, 2013, a police investigator applied for and obtained a search warrant authorizing a search of defendant's home and person based, in part, upon a sworn statement from a confidential informant (hereinafter CI) regarding defendant's possession and distribution of

90 N.Y.S.3d 382

heroin. That same day, defendant was located at a local motel, where, upon execution of the search warrant, he was found to have in his possession 92 red wax bags containing heroin and a knotted wrap of crack cocaine. Defendant's home was subsequently searched and a digital scale was discovered. Defendant was ultimately indicted

167 A.D.3d 1332

on two counts of criminal possession of a controlled substance in the third degree (possession with intent to sell) (see Penal Law § 220.16[1] ).

As part of his omnibus motion, defendant sought to suppress the physical evidence on the basis that probable cause did not exist to support the search warrant. County Court (Smith, J.) denied that motion. Thereafter, in exchange for a negotiated sentence and in full satisfaction of the indictment, defendant pleaded guilty to one count of attempted criminal possession of a controlled substance in the third degree. In accordance with the terms of the plea agreement, defendant was sentenced, as a second felony offender, to a prison term of 4½ years, followed by three years of postrelease supervision. Defendant now appeals, and we affirm.

Defendant asserts that the evidence seized from his person and from his home should have been suppressed because there was insufficient evidence in the search warrant to establish the reliability of the CI and the basis of the CI's knowledge. We disagree. Contrary to defendant's contention, the Aguilar –Spinelli test is inapplicable because the CI's name was disclosed to County Court in the CI's sworn statement accompanying the search warrant application (see People v. Shoga, 89 A.D.3d 1225, 1230, 933 N.Y.S.2d 126 [2011], lv denied 18 N.Y.3d 886, 939 N.Y.S.2d 756, 963 N.E.2d 133 [2012] ; People v. Banks, 14 A.D.3d 726, 727, 786 N.Y.S.2d 861 [2005], lv denied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005] ; People v. David, 234 A.D.2d 787, 787–788, 652 N.Y.S.2d 324 [1996], lv denied 89 N.Y.2d 1034, 659 N.Y.S.2d 864, 681 N.E.2d 1311 [1997] ).

A search warrant is properly issued when the application provides "sufficient information ‘to support a reasonable belief that evidence of a crime may be found in a certain place’ " ( People v. German, 251 A.D.2d 900, 901, 678 N.Y.S.2d 393 [1998], lv denied 92 N.Y.2d 897, 680 N.Y.S.2d 61, 702 N.E.2d 846 [1998], quoting People v. McCulloch, 226 A.D.2d 848, 849, 640 N.Y.S.2d 914 [1996], lv denied 88 N.Y.2d 1070, 651 N.Y.S.2d 414, 674 N.E.2d 344 [1996] ; see People v. Schaefer, 163 A.D.3d 1179, 1180, 82 N.Y.S.3d 197 [2018], lv denied 32 N.Y.3d 1007, 86 N.Y.S.3d 766, 111...