People v. Deliz

• Decision Date: 04 April 1991
• Citation: 568 N.Y.S.2d 181,172 A.D.2d 877
• Parties: The PEOPLE of the State of New York, Respondent, v. Enrique DELIZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 181

568 N.Y.S.2d 181

172 A.D.2d 877

The PEOPLE of the State of New York, Respondent, v. Enrique DELIZ, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 4, 1991.

Kent J. Gebert, Albany, for appellant.

Stephen F. Lungen, Dist. Atty. (Elissa Yavne, of counsel), Monticello, for respondent.

Before MAHONEY, P.J., and CASEY, LEVINE, MERCURE and HARVEY, JJ.

LEVINE, Justice.

Appeal from a judgment of the County Court of Sullivan County (Hanofee, J.), rendered August 24, 1989, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

On December 2 and 5, 1988, defendant's residence was placed under surveillance by the police in the Village of Liberty, Sullivan County. After observing apparent drug-related activity, the police set up a controlled purchase of heroin from defendant through a confidential informant on December 6, 1988. On that same day, a warrant to search defendant's residence was sought and obtained from a Village Justice. The warrant application was supported by the sworn supporting deposition of the informant, who described the circumstances surrounding his earlier purchase from defendant. Upon execution of the warrant, various tangible property, including 20 packets of heroin and 19 packets of cocaine, was seized.

Defendant was subsequently arrested and indicted on charges of criminal possession and sale of a controlled substance in the third degree. Defendant made an omnibus motion requesting, inter alia, suppression of the property seized and a Darden hearing (see, People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49). County Court purportedly denied defendant's suppression motion in its entirety, but granted his request for a Darden hearing "to the extent that a [p]robable [c]ause [h]earing will take place". Defendant then pleaded guilty to a reduced charge of criminal possession of a controlled substance in the fourth degree and was sentenced to an indeterminate term of imprisonment of 3 1/2 to 7 years. This appeal ensued.

Defendant claims on this appeal that the search warrant application was insufficient to establish probable cause under the two-pronged Aguilar- Spinelli standard (see, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; see also, People v. Griminger, 71 N.Y.2d 635, 529 N.Y.S.2d 55, 524 N.E.2d 409). This contention is misplaced, however, since the information that served as the basis for the warrant came from the confidential informant's sworn statement, rather than from hearsay information relayed by a police officer. Under these circumstances, the Aguilar- Spinelli test is inapplicable (see, People v. Bartolomeo, 53 N.Y.2d 225, 233-234, 440 N.Y.S.2d 894, 423 N.E.2d 371; see also...