People v. Burnham

• Decision Date: 01 July 1968
• Citation: 292 N.Y.S.2d 164,30 A.D.2d 813
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., Appellant, v. William Henry BURNHAM, III, and Susan Margaret Broughton, Respondents.

Page 164

292 N.Y.S.2d 164

30 A.D.2d 813

The PEOPLE, etc., Appellant, v. William Henry BURNHAM, III, and Susan Margaret Broughton, Respondents.

Supreme Court, Appellate Division, Second Department.

July 1, 1968.

Robert R. Meehan, Dist. Atty., Rockland County, New City, for appellant, Harold A. Seidenberg, Asst. Dist. Atty., of counsel.

Gilbert E. McCormack, West Nyack, for defendant-respondent, William Henry Burnham, III.

Donald Tirschwell, New City, for defendant-respondent, Broughton, Stephen Flaxman, New City, on the brief.

Before BELDOCK, P.J., and CHRIST, BRENNAN, HOPKINS and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

Three orders of the County Court, Rockland County, one dated February 26, 1968 and two dated March 5, 1968, affirmed.

One of the orders dated March 5, 1968 granted respondent Broughton's motion to suppress the very evidence which was the subject of the possession of narcotics charges at issue (Penal Law, § 220.20). The State Investigator's affidavit upon which the search warrant was issued was based on an undisclosed informant's information. Probable cause for the issuance of the search warrant is lacking because there was no sufficient showing that the informant was credible or his information reliable (People v. Montague, 19 N.Y.2d 121, 278 N.Y.S.2d 372, 224 N.E.2d 873). Not only was there no showing that the informant had furnished information 'in the past * * * leading to the Arrest and conviction of others' (emphasis added), but there was also lacking any surrounding factual detail as to the source and basis of the informant's alleged information with respect to the narcotics involved in this case (People v. Montague, supra, 19 N.Y.2d p. 122, 278 N.Y.S.2d p. 374, 224 N.E.2d p. 874; see also, People v. Horowitz, 21 N.Y.2d 55, 286 N.Y.S.2d 473, 233 N.E.2d 453). The investigator who made the affidavit in this case made no personal affirmation of the facts but relied exclusively on his unproven and undisclosed informant.

Once this evidence is suppressed, there is clearly insufficient evidence to support the indictments and the People so concede; thus, the other two orders from which the People have appealed, dismissing the indictment respectively as to respondents Broughton and Burnham, must be affirmed.

CHRIST, BRENNAN, HOPKINS and BENJAMIN, JJ., concur.

BELDOCK, P.J., dissents and votes to reverse the orders and to deny the motions, with the following memorandum:

In my opinion, the contents of the affidavit established probable cause for the search of defendant Burnham's house trailer and the subsequent discovery of almost two pounds of marijuana. The police officer's affidavit stated not only that the undisclosed informant had furnished information which led to the arrest of a named individual, but also that on other occasions the informant had supplied information relative to statutory violations. This, in my opinion, amply established that the informant was 'credible' and that his information was 'reliable' (Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723). Nevertheless, the majority has taken the position that, because the affidavit did not indicate that convictions flowed from this informant's previous information, it was defective. All that the cases require to establish an informant's reliability is that he has, on previous occasions, given Reliable information (...