People v. Cowan
Decision Date | 27 November 2019 |
Docket Number | 109345 |
Citation | 114 N.Y.S.3d 506,177 A.D.3d 1173 |
Parties | The PEOPLE of the State of New York, Respondent, v. Michael COWAN, Appellant. |
Court | New York Supreme Court — Appellate Division |
177 A.D.3d 1173
114 N.Y.S.3d 506
The PEOPLE of the State of New York, Respondent,
v.
Michael COWAN, Appellant.
109345
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: October 9, 2019
Decided and Entered: November 27, 2019
Aaron A. Louridas, Delmar, for appellant.
Palmer J. Pelella, Special Prosecutor, Owego, for respondent.
Before: Garry, P.J., Mulvey, Devine and Aarons, JJ.
MEMORANDUM AND ORDER
Garry, P.J.
Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered October 3, 2014, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree and the violation of unlawful possession of marihuana.
In February 2012, a confidential informant (hereinafter CI) told the Broome County Sheriff's Department that defendant and Marcus Jackson were planning to travel together by bus from New York City to Broome County to sell cocaine. Members of the Broome County Task Force1 obtained a search warrant, detained defendant and Jackson as they were leaving the bus station in the City of Binghamton, Broome County and searched defendant's person. The search revealed that he was carrying cocaine and marihuana. Defendant was charged with criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, and unlawful possession of marihuana, a violation.
Defendant moved to suppress the seized evidence and requested a Darden hearing. After conducting the Darden hearing, County Court denied the suppression motion, finding that the CI's communications to police officers were in fact made, were reliable, and were sufficient to establish probable cause. Following a jury trial, defendant was convicted as charged. He was sentenced as a second felony offender to concurrent prison terms of six years for the convictions of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, followed by three years of postrelease supervision, and to a one-year conditional release on the
conviction for unlawful possession of marihuana. Defendant appeals.
We reject defendant's contention that probable cause to support issuance of the search warrant was lacking because the
CI's reliability and basis for knowledge were not proven. Probable cause may be based upon hearsay information obtained from a CI so long as police officers "establish that the [CI] had some basis for the knowledge he [or she] transmitted to them and that he [or she] was reliable" ( People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ; see People v. Hetrick, 80 N.Y.2d 344, 348, 590 N.Y.S.2d 183, 604 N.E.2d 732 [1992] ; People v. Bell, 299 A.D.2d 582, 583, 750 N.Y.S.2d 189 [2002], lv denied 99 N.Y.2d 555, 754 N.Y.S.2d 207, 784 N.E.2d 80 [2002] ). Here, the warrant application was accompanied by a statement from the CI that was "affirmed under penalty of perjury" and submitted for in camera review. Under such circumstances, a CI's reliability and the basis of his or her knowledge need not be assessed, as the statement "is in and of itself sufficient to support the issuance of a search warrant" ( People v. David, 234 A.D.2d 787, 788, 652 N.Y.S.2d 324 [1996], lv denied 89 N.Y.2d 1034, 659 N.Y.S.2d 864, 681 N.E.2d 1311 [1997] ; see People v. Hicks, 38 N.Y.2d 90, 93–94, 378 N.Y.S.2d 660, 341 N.E.2d 227 [1975] ). As the statement is not contained within our record, we further note that our in camera review of the confidential minutes of the Darden hearing reveals that the CI had provided information to police in the past (see People v. Rodriguez, 52 N.Y.2d 483, 489, 438 N.Y.S.2d 754, 420 N.E.2d 946 [1981] ; People v. Tyrell, 248 A.D.2d 747, 748, 670 N.Y.S.2d 60 [1998], lv denied 92 N.Y.2d 907, 680 N.Y.S.2d 71, 702 N.E.2d 856 [1998] ) and that the information that he provided was based on his firsthand observations and interactions with defendant – "[t]he most reliable" demonstration of the basis for a CI's knowledge ( People v. Bigelow, 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 ; see People v. Douglas, 42 A.D.3d 756, 758, 839 N.Y.S.2d 337 [2007], lv denied 9 N.Y.3d 922, 844 N.Y.S.2d 177, 875 N.E.2d 896 [2007] ; People v. Mantia, 299 A.D.2d 664, 665, 749 N.Y.S.2d 606 [2002], lv denied 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174 [2003] ).
We find no merit in defendant's contention that the warrant failed to provide a sufficiently particular description of defendant. As defendant argues, the warrant identified him only with the street name "Slime" and stated a height that was three or four inches shorter than his true height. However, defendant does not claim that the remainder of the physical description – which described his build, coloring and facial hair – was inaccurate. The warrant further described defendant by his association with Jackson, whose full name, date of birth and photograph were provided. The warrant application stated that the CI had identified a photograph of Jackson as a person whom he knew as Mill, that the CI had met Mill and Slime in Binghamton within the past two weeks and had seen them in possession of crack cocaine, and that both Mill and Slime kept crack cocaine hidden in the zipper area of the front of their pants. "While particularity of a search warrant is certainly required, ‘[t]his does not mean that hypertechnical accuracy and completeness of description must be attained’ " ( People v. Thomas, 155 A.D.3d 1120, 1121, 64 N.Y.S.3d 702 [2017], lv denied
31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018], quoting People v. Nieves, 36 N.Y.2d 396, 401, 369 N.Y.S.2d 50, 330 N.E.2d 26 [1975] ). A warrant is sufficiently particular where, as here, "from the standpoint of common sense, ... the descriptions in the warrant and its
supporting affidavits [are] sufficiently definite to enable the searcher to identify the persons, places or things that the [issuing court] has previously determined should be searched or seized" ( People v. Nieves, 36 N.Y.2d at 401, 369 N.Y.S.2d 50, 330 N.E.2d 26 [internal citations omitted] ).2
We reject defendant's contention that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence. Specifically, defendant contends that the People failed to prove beyond a reasonable doubt that he intended to sell the cocaine found in his possession, rather than keeping it for personal use, and further failed to prove the weight of the cocaine and that it was not altered while in police custody. The testimony of the People's witnesses established that a detective on the Task Force received information that Jackson and an individual whose street name was Slime would be coming to Binghamton by bus from New York City to sell cocaine. The...
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