People v. Candella
| Decision Date | 15 November 1991 |
| Parties | PEOPLE of the State of New York, Respondent, v. Deborah CANDELLA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John Humann, Buffalo, for appellant.
Peter L. Broderick, Dist. Atty., by Thomas Brandt, Lockport, for respondent.
Before DOERR, J.P., and DENMAN, BOOMER, GREEN and DAVIS, JJ.
DOERR, Justice Presiding:
Following an informant's tip that defendant Joseph Piccirillo was a cocaine dealer, Officer Pierini of the Niagara Falls Police Department arranged for the informant to make a cocaine purchase from Piccirillo. The informant telephoned Piccirillo to set up the deal, and Officer Pierini observed the informant enter the four-unit apartment building where Piccirillo resided with defendant Cynthia DiMarco. The informant returned with a package which contained cocaine.
Based upon this controlled buy, Officer Pierini prepared an application for a pen register order, which was signed by the District Attorney and granted by Niagara County Court on July 11, 1989. Thirty days later, an eavesdropping warrant was granted by Niagara County Court, based upon the application of the District Attorney, which was supported by an affidavit of Officer Pierini. As a result of information obtained from the wiretapping of defendant's telephone pursuant to the eavesdropping warrant, a search warrant for the apartment shared by Piccirillo and DiMarco was obtained on September 28, 1989, and executed on October 6, 1989. Cocaine and drug paraphernalia were recovered and defendants Piccirillo and Cynthia DiMarco were arrested.
Piccirillo was eventually indicted in a multi-count indictment. Defendants Deborah Candella and David DiMarco were also indicted, the charges against them based in part upon conversations intercepted pursuant to the eavesdropping warrant. Cynthia DiMarco entered a plea of guilty to a Superior Court information charging criminal possession of a controlled substance in the fifth degree and agreed to cooperate in the investigation.
Defendants Piccirillo, Candella and David DiMarco joined in a motion to suppress the fruits of the pen register order, the eavesdropping warrant, and the search warrant. Following the denial of the motion, Candella entered a plea of guilty to one count of attempted conspiracy in the second degree, and David DiMarco entered a plea of guilty to one count of criminal possession of a controlled substance in the fifth degree. Each was sentenced to serve one year in the Niagara County Jail. Defendant Piccirillo was convicted following a jury trial of conspiracy in the second degree, two counts of conspiracy in the fourth degree, one count of criminal sale of a controlled substance in the third degree, one count of criminal possession of a controlled substance in the fifth degree, and two counts of criminal use of drug paraphernalia in the second degree. He was sentenced to serve indeterminate, concurrent terms, the highest being three to nine years.
We reject defendants' challenges to the validity of the pen register order. However, we agree with the arguments of defendants that the fruits of the eavesdropping warrant must be suppressed.
The application for the eavesdropping warrant was sworn to by the District Attorney and was supported by the affidavit of Officer Pierini. Probable cause to issue the warrant was based upon the single purchase of cocaine in June 1989. Officer Pierini also referred to information given by a different informant that cocaine dealing took place at a certain bar and, according to information obtained through the pen register, telephone calls took place between this bar and Piccirillo's telephone. However, County Court properly rejected this information on the ground that the reliability of the informant had not been established.
We conclude that the information concerning a single sale of cocaine to an informant in June 1989 was stale and did not establish probable cause for the issuance of an eavesdropping warrant in mid-August 1989. "[P]roof of probable cause 'must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time' " (People v. Christopher, 101 A.D.2d 504, 527, 476 N.Y.S.2d 640, revd. on other grounds 65 N.Y.2d 417, 492 N.Y.S.2d 566, 482 N.E.2d 45, quoting Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 141, 77 L.Ed. 260; see also, People v. Padilla, 132 A.D.2d 578, 517 N.Y.S.2d 299; People v. Loewel, 50 A.D.2d 483, 378 N.Y.S.2d 521, affd. 41 N.Y.2d 609, 394 N.Y.S.2d 591, 363 N.E.2d 316). Staleness is not determined merely by "counting the number of days between the occurrence of the events relied upon and the warrant's issuance" (People v. Christopher, supra, 101 A.D.2d at 527, 476 N.Y.S.2d 640; People v. Teribury, 91 A.D.2d 815, 458 N.Y.S.2d 85). The determination must be based upon the "particular facts and circumstances of each case as presented to the magistrate at the time of the warrant application" (People v. Christopher, supra; see also, People v. Nieves, 36 N.Y.2d 396, 402, 369 N.Y.S.2d 50, 330 N.E.2d 26). "Information may be acted upon as long as the practicalities dictate that '[p]robable cause existent in the past' may continue" (People v. Teribury, supra, 91 A.D.2d at 816, 458 N.Y.S.2d 85, quoting United States v. Brinklow, 560 F.2d 1003, 1005, cert. denied 434 U.S. 1047, 98 S.Ct. 893, 54 L.Ed.2d 798).
The application of these principles to the facts before us compels the conclusion that the eavesdropping warrant was not issued upon probable cause. The evidence of a single sale of cocaine to an informant in June 1989 was not refreshed by information about continued drug activity occurring between the sale and the application for the eavesdropping warrant (see, People v. Baris, 116 A.D.2d 174, 184, 500 N.Y.S.2d 572, lv. denied 67 N.Y.2d 1050, 504 N.Y.S.2d 1025, 495 N.E.2d 358; People v. Christopher, supra, 101 A.D.2d at 528, 476 N.Y.S.2d 640). Evidence of a single drug transaction does not, without more, support the conclusion that the activity is continuous (cf., People v. Acevedo, 175 A.D.2d 323, 572 N.Y.S.2d 101; People v. Teribury, supra, 91 A.D.2d at 816, 458 N.Y.S.2d 85). If this were not the case, an eavesdropping warrant could issue every time an informant...
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