People v. Davis
| Decision Date | 28 April 1983 |
| Citation | 463 N.Y.S.2d 67,93 A.D.2d 970 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Frank J. DAVIS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Scott C. Gottlieb, Binghamton, for appellant.
Patrick H. Matthews, Broome County Dist. Atty., Binghamton (Thomas P. Walsh, Binghamton, of counsel), for respondent.
Before MAHONEY, P.J., and SWEENEY, KANE, MIKOLL and LEVINE, JJ.
Appeal from a judgment of the County Court of Broome County, rendered June 3, 1982, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.
On this appeal, defendant seeks to challenge the trial court's ruling denying his motion to suppress the controlled substances found pursuant to a search warrant which formed the basis of the criminal charges brought against him.
An initial search warrant authorizing a search of the residence occupied by defendant and Roseanne Grecco and their persons for controlled substances was issued by the County Court Judge on October 9, 1981. The warrant was applied for by Detective Angeline of the Binghamton Police Department and was issued only after the confidential informant whose information formed the basis of Angeline's application was interviewed in camera by the County Court Judge. The October 9, 1981 warrant was never executed. Consequently, Detective Angeline made a second application for an identical search warrant which was issued by the County Court Judge on October 21, 1981. When defendant was subsequently stopped upon returning to his residence on the evening of October 21, 1981, two packages containing cocaine and heroin were recovered after defendant tossed them onto the driveway.
Defendant argues that the second warrant was based upon information insufficient to constitute probable cause. A threshold question which must be addressed in resolving the issue of probable cause is the extent to which the application for the first search warrant on October 9, 1981 can be used to justify the issuance of the second warrant on October 21, 1981. Since Detective Angeline's affidavit in support of the second warrant application specifically incorporated the affidavit he had made in support of the first warrant in addition to the informant's sworn testimony before the court at that time, we see no reason why the two affidavits cannot be considered together in determining whether probable cause existed for issuance of the second warrant. Since both applications dealt with the same persons, premises and subject matter, the information in the first affidavit was certainly relevant to the second warrant application. While the information contained in the first affidavit might arguably have been stale at the time the second warrant was issued, and thus insufficient to support it, there was additional information submitted in Detective Angeline's second affidavit to support the October 21, 1981 warrant (cf. People v. McCants, 59 A.D.2d 999, 399 N.Y.S.2d 715).
While we agree with defendant's position that the October 21, 1981 warrant must satisfy the two-pronged test of Aguilar v. Texas (378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723) since it was based on statements made by an informant who did not testify under oath in support of the second warrant or execute an affidavit in support thereof (see People v. Bartolomeo, 53 N.Y.2d 225, 233-234, 440 N.Y.S.2d 894, 423 N.E.2d 371), it is our view that the test has been met in this case. The "veracity" prong of the Aguilar test, dealing with the trustworthiness of the informant, was satisfied by a statement made by the informant against his penal interest to Angeline that he had recently purchased heroin from defendant (People v. Brown, 40 N.Y.2d 183, 187, 386 N.Y.S.2d 359, 352 N.E.2d 545). The "basis of knowledge" prong, concerning the trustworthiness of the information possessed by the informant, was...
To continue reading
Request your trial
-
People v. Bennett
...was the New York City Police Department, but this omission is insufficient to invalidate the warrant. See People v. Davis, 93 A.D.2d 970, 463 N.Y.S.2d 67 (3d Dept.1983) (because the investigation was conducted by the Binghamton Police Department and one of its members was applicant for the ......
-
People v. Tambe
...A.D.2d 174, 500 N.Y.S.2d 572, supra [4th Dept.]; People v. Rezey, 107 A.D.2d 850, 852, 484 N.Y.S.2d 276 [3d Dept.]; People v. Davis, 93 A.D.2d 970, 463 N.Y.S.2d 67 [3d Dept.]; People v. Germaine, 87 A.D.2d 848, 849, 449 N.Y.S.2d 508, supra [2d Dept.] ) as well as in other jurisdictions ( se......
-
People v. Clarke
...People v. Hanlon, 36 N.Y.2d 549, 369 N.Y.S.2d 677, 330 N.E.2d 631; People v. Tune, 103 A.D.2d 990, 479 N.Y.S.2d 832; People v. Davis, 93 A.D.2d 970, 463 N.Y.S.2d 67; People v. Teribury, 91 A.D.2d 815, 458 N.Y.S.2d 85; People v. McCants, 59 A.D.2d 999, 399 N.Y.S.2d 715; People v. Freitag, 14......
-
Town of East Hampton v. Omabuild USA No. 1, Inc.
...Morgan, 162 A.D.2d 723, 558 N.Y.S.2d 88; People v. Nelson, supra; People v. LaBombard, 99 A.D.2d 851, 472 N.Y.S.2d 764; People v. Davis, 93 A.D.2d 970, 463 N.Y.S.2d 67). Contrary to Omabuild's argument, Town officials were under no obligation to request consent to enter onto the premises pr......