People v. Cavallaro

• Decision Date: 11 December 2014
• Docket Number: 104097
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael J. CAVALLARO, Appellant.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 1221
998 N.Y.S.2d 516
2014 N.Y. Slip Op. 08671

The PEOPLE of the State of New York, Respondent
v.
Michael J. CAVALLARO, Appellant.

104097

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

Dec. 11, 2014.

998 N.Y.S.2d 517

Kevin M. Colwell, Albany, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and CLARK, JJ.

Opinion

CLARK, J.

123 A.D.3d 1221

Appeal from a judgment of the County Court of

123 A.D.3d 1222

Ulster County (Williams, J.), rendered December 23, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

While under investigation by the Ulster Regional Gang Enforcement Narcotics Team, defendant sold ecstasy to a confidential informant in March 2009. As part of a controlled buy operation, defendant sold cocaine to a second confidential informant at defendant's residence in January 2010. Investigators then obtained a search warrant for defendant's residence, where they recovered a handgun and various illegal drugs. Thereafter, defendant was charged in an indictment with various offenses arising out of the two drug sales and his possession of the items seized at his residence. Following a hearing, County Court rejected defendant's efforts to suppress physical evidence recovered in the search and statements that he made to police after his arrest. Defendant then pleaded guilty to one count of criminal possession of a controlled substance in the third degree in satisfaction of the indictment and admitted to possessing cocaine at his residence. County Court made no sentencing commitment as part of the plea arrangement and ultimately sentenced defendant, as a second felony offender, to a 10–year prison term followed by three years of postrelease supervision. Defendant appeals, and we now affirm.

Defendant initially contends that probable cause did not support the issuance of the search warrant because a misstatement in the search warrant application, as to when the January 2010 controlled buy occurred, called the reliability of the confidential informant into question. County Court credited, however, the testimony of an investigator that the misstatement in the application was a typographical error that was unconnected to any information provided by the confidential informant. Inasmuch as search warrant applications will “not be read in a hypertechnical manner as if they were entries in an essay contest,” the factual error contained within the application did not impair the warrant's validity (

998 N.Y.S.2d 518

People v. Hanlon, 36 N.Y.2d 549, 559, 369 N.Y.S.2d 677, 330 N.E.2d 631 [1975] ; see People v. Bowers, 92 A.D.2d 669, 670, 461 N.Y.S.2d 900 [1983] ; People v. Finch, 57 A.D.2d 641, 642, 393 N.Y.S.2d 222 [1977] ). To the extent that defendant otherwise questions the reliability of the confidential informant, evidence of the “controlled buy of drugs at defendant's apartment only days prior to the issuance of the warrant satisfied the reliability prong of the Aguilar–Spinelli test” (People v. Morton, 288 A.D.2d 557, 558, 734 N.Y.S.2d 249 [2001], lv. denied 97 N.Y.2d 758, 742 N.Y.S.2d 619, 769 N.E.2d 365 [2002], cert. denied 537 U.S. 860, 123 S.Ct. 237, 154 L.Ed.2d 99 [2002] ; see People v. Vargas, 72 A.D.3d 1114, 1115–1116, 898 N.Y.S.2d 323 [2010], lv. denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010] ). County Court thus properly found the search warrant to be valid.

123 A.D.3d 1223

County Court also acted properly in declining to suppress the statements that defendant made to police. Defendant was promptly transported to the police station after his arrest and was advised of his Miranda rights before any questioning began. The investigator then told defendant, not inaccurately, that the handgun and drugs recovered in his apartment could have belonged to anyone who lived there, and that his live-in girlfriend would face criminal charges if no one took responsibility for possessing those items. Immediately thereafter, defendant admitted that the items were his. Defendant argues that the threat to arrest his girlfriend was coercive, but police are free “to capitalize on a defendant's sense of shame or reluctance to involve his family in a...