People v. Chisholm

• Citation: 21 N.Y.3d 990,995 N.E.2d 164,2013 N.Y. Slip Op. 04841,972 N.Y.S.2d 202
• Parties: The PEOPLE of the State of New York, Respondent, v. Derek CHISHOLM, Appellant.
• Decision Date: 27 June 2013
• Court: New York Court of Appeals

21 N.Y.3d 990

995 N.E.2d 164

972 N.Y.S.2d 202

2013 N.Y. Slip Op. 04841

The PEOPLE of the State of New York, Respondent,

v.Derek CHISHOLM, Appellant.

Court of Appeals of New York.

June 27, 2013.

Lynn W.L. Fahey, Appellate Advocates, New York City (Allegra Glashausser of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Donna Aldea, Robert J. Masters, John M. Castellano and Josette Simmons McGhee of counsel), for respondent.

OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Division should be modified by remitting to Supreme Court for further proceedings in accordance with this memorandum and, as so modified, affirmed.

Defendant was convicted of multiple drug and weapon possession charges after a search of his home revealed marijuana and two firearms. Before trial, defendant moved to suppress the evidence and to controvert the search warrant, which was based on the affidavit of a police officer, her testimony, and the oral deposition of a confidential informant who was brought before the issuing magistrate. Defendant also requested a hearing pursuant to People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 (1974). Supreme Court denied defendant's motion based on the warrant papers alone and without reviewing the transcript of the confidential informant's testimony. The Appellate Division affirmed on appeal from the judgment of conviction and sentence, holding that Supreme Court providently exercised its discretion in denying defendant's application for a Darden hearing (89 A.D.3d 859, 860, 932 N.Y.S.2d 180 [2d Dept.2011] ).

While the courts below properly determined that defendant was not entitled to a Darden hearing ( see People v. Serrano, 93 N.Y.2d 73, 77, 688 N.Y.S.2d 90, 710 N.E.2d 655 [1999] ), we agree with defendant that Supreme Court erred by failing to examine the transcript of the confidential informant's testimony before the magistrate to determine whether the search warrant was issued upon probable cause and that the formal requirements of CPL 690.40(1) had been substantially complied with ( see id. at 77–78, 688 N.Y.S.2d 90, 710 N.E.2d 655;People v. Taylor, 73 N.Y.2d 683, 688–690, 543 N.Y.S.2d 357, 541 N.E.2d 386 [1989] ).

The search warrant and supporting affidavit do not by themselves establish probable cause in this case ( see People v. Serrano, 93 N.Y.2d at 77–78, 688 N.Y.S.2d 90, 710 N.E.2d 655). A warrant application containing information provided by a confidential informant must demonstrate “the veracity or reliability of the source of the information” ( id. at 78, 688 N.Y.S.2d 90, 710 N.E.2d 655, quoting People v. Griminger, 71 N.Y.2d 635, 639, 529 N.Y.S.2d 55, 524 N.E.2d 409 [1988];see Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 [1969];Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 [1964] ). There are no “factual averments” in the police officer's affidavit that could have afforded the magistrate a basis for determining the reliability of the confidential informant ( People v. Serrano, 93 N.Y.2d at 78, 688 N.Y.S.2d 90, 710 N.E.2d 655). The affidavit does not state that the informant had a proven “track record” of supplying reliable information in the past ( People v. Johnson, 66 N.Y.2d 398, 403, 497 N.Y.S.2d 618, 488 N.E.2d 439 [1985] [internal quotation marks omitted] ), and it is not evident that the informant was under oath when information was given to the officer ( see People v. Wheatman, 29 N.Y.2d 337, 345, 327 N.Y.S.2d 643, 277 N.E.2d 662 [1971],cert. denied sub nom., Marcus v. New York, 409 U.S. 1027, 93 S.Ct. 460, 34 L.Ed.2d 321 [1972],reh. denied,409 U.S. 1119, 93 S.Ct. 898, 34 L.Ed.2d 703 [1973] ).

Nor may the reliability of the confidential informant be inferred solely from the statement, set forth in the affidavit, that the informant bought cocaine from defendant. While admissions against penal interest may be sufficient to support a finding of probable cause ( see People v. McCann, 85 N.Y.2d 951, 953, 626 N.Y.S.2d 1006, 650 N.E.2d 853 [1995] ), “[s]uch admissions are not guarantees of truthfulness and they should be accepted only after careful consideration of all the relevant circumstances of the case indicates that there exists a basis for finding reliability” ( People v. Johnson, 66 N.Y.2d at 403–404, 497 N.Y.S.2d 618, 488 N.E.2d 439).

Here, unlike People v. McCann, where the informant was a co-defendant, the confidential informant did not provide a “detailed signed statement” that was made “against [the informant's] penal interests, and with the express understanding that making a false written statement was a crime” (85 N.Y.2d at 953, 626 N.Y.S.2d 1006, 650 N.E.2d 853). Instead, the officer's affidavit merely avers that the confidential informant told her that cocaine was purchased from defendant at his home on three occasions. While these statements were contrary to the informant's penal interests, the details provided by the informant, other than the location of defendant's home, were not corroborated by the police ( see People v. Comforto, 62 N.Y.2d 725, 727, 476 N.Y.S.2d 815, 465 N.E.2d 354 [1984] [police corroboration of informant's statement contrary to his penal interests “provided a sufficient basis for the magistrate to conclude that the tip was credible”] ).

Because neither the search warrant nor the supporting affidavit establishes that the informant was reliable, they did not by themselves establish probable cause ( see People v. Serrano, 93 N.Y.2d at 78, 688 N.Y.S.2d 90, 710 N.E.2d 655). Thus, Supreme Court “needed the transcript of the examination of the informant in order properly to determine that there was probable cause to issue the search warrant” ( id.).

Moreover, by upholding the validity of the warrant without examining the transcript of the confidential informant's testimony, Supreme Court failed to determine that the magistrate substantially complied with the requirements of CPL 690.40(1) ( see id.). This statute provides that in determining a search warrant application, “the court may examine, under oath, any person whom it believes may possess pertinent information. Any such examination must be either recorded or summarized on the record by the court.” We have made clear that “[t]he suppression court must find that there was substantial compliance with CPL 690.40(1) in order to provide an ‘assurance of the regularity of the application process and preservation for appellate review of the grounds upon which a search warrant is issued’ ” ( People v. Serrano, 93 N.Y.2d at 78, 688 N.Y.S.2d 90, 710 N.E.2d 655 [alterations omitted], quoting People v. Taylor, 73 N.Y.2d at 689, 543 N.Y.S.2d 357, 541 N.E.2d 386).

Accordingly, we remit this matter to Supreme Court to review the transcript of the confidential informant's testimony ^* and determine whether the warrant was supported by probable cause and that CPL 690.40(1) was substantially complied with. On remittal, if Supreme Court concludes that the warrant was not supported by probable cause or that CPL 690.40(1) was not substantially complied with, then the judgment of conviction and sentence should be vacated and the motion to suppress granted. If, on the other hand, the court concludes that probable cause and compliance with CPL 690.40(1) were established, then the judgment should be amended to reflect that result.

SMITH, J. (dissenting).

In my view, the affidavit submitted in support of the search warrant was sufficient, without testimony from the confidential informant, to support a finding of probable cause and thus to justify the warrant's issuance. I would therefore hold it unnecessary for Supreme Court to examine the transcript of the informant's testimony, and would affirm the Appellate Division's order.

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