People v. Cazeau

• Decision Date: 25 March 2021
• Docket Number: 109529
• Citation: 145 N.Y.S.3d 191,192 A.D.3d 1388
• Parties: The PEOPLE of the State of New York, Respondent, v. Berthony CAZEAU, Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1388
145 N.Y.S.3d 191

The PEOPLE of the State of New York, Respondent,
v.
Berthony CAZEAU, Appellant.

109529

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

Calendar Date: February 9, 2021
Decided and Entered: March 25, 2021

145 N.Y.S.3d 192

Mitch Kessler, Cohoes, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the Supreme Court (Ceresia, J.), rendered June 1, 2017 in Albany County, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

Defendant was charged by indictment with criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree stemming from a search of his apartment. The search was prompted by a tip from a named citizen informant (hereinafter MZ), who told police that defendant unlawfully possessed a handgun and detailed the location of drugs that she claimed defendant had hidden in his apartment. After a brief investigation by the police, a search warrant was applied for and granted. During the search, the police discovered a handgun and ecstasy in the apartment. Defendant was subsequently arrested and, following his indictment, moved to suppress the evidence obtained in the search of his apartment, arguing, among other things, that the search warrant was not supported by probable cause. A suppression hearing was held after which Supreme Court denied defendant's motion to suppress the evidence seized pursuant to the search warrant. Thereafter, defendant pleaded guilty to a reduced charge of attempted criminal possession of a weapon in the second degree in satisfaction of the indictment. In accordance with the plea agreement,¹ defendant was sentenced to a prison term of seven years, followed by five years of postrelease supervision. Defendant appeals.

Supreme Court properly denied defendant's motion to suppress the evidence seized from the search of defendant's apartment. "To establish probable cause for the issuance of a search warrant, the warrant application must demonstrate that there is sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place" ( People v. Vanness, 106 A.D.3d 1265, 1266, 965 N.Y.S.2d 227 [2013] [internal quotation marks, brackets and citations omitted], lv denied 22 N.Y.3d 1044, 981 N.Y.S.2d 378, 4 N.E.3d 390 [2013] ; see People v. Alberts, 161 A.D.3d 1298, 1304, 77 N.Y.S.3d 207 [2018], lv denied 31 N.Y.3d 1114, 81 N.Y.S.3d 374, 106 N.E.3d 757 [2018] ). "[S]uch probable cause may be supplied, in whole or in part, by hearsay information, provided that it satisfies the two-part Aguilar–Spinelli test requiring a showing that the informant is reliable and has a basis of knowledge for the information imparted" ( People v. Bahr, 35 A.D.3d 909, 910, 825 N.Y.S.2d 809 [2006] [internal quotation marks, brackets and citations omitted], lv denied 8 N.Y.3d 919, 834 N.Y.S.2d 509, 866 N.E.2d 455 [2007] ; see People v. Baptista, 130 A.D.3d 1541, 1541–1542, 13 N.Y.S.3d 759 [2015], lv denied

145 N.Y.S.3d 193

27 N.Y.3d 991, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016] ). As relevant here, "information provided by private citizen informants ... is presumed to be reliable," thus satisfying the first part of the Aguilar–Spinelli test ( People v. Gibson, 117 A.D.3d 1317, 1321, 986 N.Y.S.2d 660 [2014], affd 24 N.Y.3d 1125, 3 N.Y.S.3d 320, 26 N.E.3d 1175 [2015] ; see People v. Slater, 173 A.D.2d 1024, 1026, 570 N.Y.S.2d 691 [1991], lv denied 78 N.Y.2d 974, 574 N.Y.S.2d 954, 580 N.E.2d 426 [1991] ). The second part, basis of knowledge, "can be met when ... it is clear the informant was speaking from firsthand knowledge" ( People v. Hitt, 61 A.D.2d 857, 857, 401 N.Y.S.2d 906 [1978] [internal quotation marks and citations omitted]; see People v. Slater, 173 A.D.2d at 1026, 570 N.Y.S.2d 691 ).

At the suppression hearing, a detective with the Albany Police Department testified that he spoke with a woman who identified herself as MZ, who called to offer information regarding a gun crime. The detective testified that he never spoke with MZ in person and that his only communication with her occurred over the phone and through text messaging, as she lived in Connecticut. The detective testified that MZ told him that she previously had a romantic relationship with defendant and that, while staying with defendant over a weekend, he showed her a handgun and told her that it had been used in a shooting in the City of Albany. The detective further stated that MZ told him that defendant sells ecstasy and that he keeps his stash of ecstasy hidden in a speaker in his bedroom. The detective also testified that MZ described the handgun as a nine-millimeter Glock with a black grip. The detective testified that, to corroborate the information provided by MZ, he ran defendant's criminal history and found that he had past convictions for handgun possession and the sale of ecstasy. The detective further testified that he took steps to confirm that MZ...