People v. Galimulla

• Decision Date: 24 July 1992
• Citation: 155 Misc.2d 3,588 N.Y.S.2d 110
• Parties: The PEOPLE of the State of New York v. Elaft J. GALIMULLA, Jr., Defendant.
• Court: New York Supreme Court

Page 110

588 N.Y.S.2d 110

155 Misc.2d 3

The PEOPLE of the State of New York v. Elaft J. GALIMULLA, Jr., Defendant.

Supreme Court, Suffolk County Criminal Term Part V.

July 24, 1992.

James M. Catterson, Jr., Dist. Atty., Suffolk County, by L. Michael Davicino, Hauppauge, for People.

William J. Keahon, P.C., Islandia, for defendant.

H. PATRICK LEIS, III, Acting Justice.

The Defendant is charged with Criminal Possession of a Controlled Substance in the First Degree.

The physical evidence underlying the indictment (cocaine) was seized from a safe in Defendant's bedroom pursuant to a search warrant which was executed on September 29, 1990. The warrant authorized the search of Defendant's residence (located at 33 Hy Place, Lake Grove, New York) for:

"Cocaine, U.S. Currency as proceeds of the illicit drug business, books and records reflecting transactions of the illicit drug business, drug paraphernalia including items for the storage, packaging and weighing of cocaine, ..."

The Defendant moves to controvert the search warrant and to suppress the cocaine which was seized upon the grounds that the application in support of the warrant contains material and false allegations made knowingly or in reckless disregard of the truth pursuant to People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644 and Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667. The Defendant also argues that the search warrant was issued without probable cause and that it lacks specificity and is overbroad in that it fails to identify the bedroom safe as a place to be searched. Oral argument was heard on June 25, 1992.

The application presented to the issuing magistrate contained two sworn affidavits each dated September 28, 1990--one by Detective Frank Giardina and the other by Brian Fuhrmann (an informant whose identity was disclosed to the issuing magistrate and who is now known to the Defendant). Det. Giardina's affidavit in support of the application for the search warrant contained no personal knowledge, but was based upon information and belief, the sources being an attached sworn statement of a confidential informant and conversations with fellow police officers, that cocaine would be found at 33 Hy Place, Lake Grove, Suffolk County, New York. The alleged conversations with fellow police officers were never divulged to the issuing magistrate, and this Court accords no weight or significance to same. Det. Giardina's affidavit went on to state:

"The attached sworn statement was given by a confidential informant. Based upon information and belief, the source being a computerized criminal history report, the Confidential Informant has pending Felony criminal charges. No promises were given to the informant in exchange for the informant's cooperation other than the informant was advised that the Suffolk County District Attorney's Office would be told of the informant's cooperation.

"Based upon information supplied by the confidential informant and which is contained in the attached sworn statement, there is probable cause to believe that cocaine is concealed within the above described premises. Said information contained within the attached sworn statement was provided to your deponent approximately one hour after the confidential informant's arrest on Felony charges."

Fuhrmann's sworn statement alleged that on September 28, 1990, he was with the Defendant and observed him purchase approximately ten (10) ounces of cocaine for $4,000.00 which Fuhrmann secreted in Galimulla's car. They then drove to 33 Hy Place, Lake Grove, New York at which time they went into Defendant's house wherein Fuhrmann observed Galimulla place the cocaine on a dresser. Fuhrmann also observed a digital scale used to weigh cocaine and hypodermic needles in the closet and a case of cocaine under the Defendant's bed. Fuhrmann also stated that he has seen Defendant sell cocaine many times at this location.

The Defendant argues that the search warrant application fails the two-pronged Aguilar- Spinelli test (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) as mandated under New York constitutional standards enunciated in People v. Griminger, 71 N.Y.2d 635, 529 N.Y.S.2d 55, 524 N.E.2d 409. He submits that Brian Fuhrmann's statement is unreliable because it is not a statement against penal interest and even if it was, such would not guarantee its truthfulness. He further submits that the informant's statement is unreliable because Fuhrmann was under arrest for felony crimes of Forgery when he gave his sworn statement.

Defendant's reliance on People v. Cassella, 143 A.D.2d 192, 531 N.Y.S.2d 639 is misplaced. In Cassella, the informant made oral, unsworn statements, not a written sworn statement. This Court finds that Fuhrmann's statement was a declaration against penal interest in that he admitted possessing cocaine while in the Defendant's car.

The Defendant, citing People v. Balzer, 145 A.D.2d 744, 535 N.Y.S.2d 481 [3rd Dep't 1988], also argues that the information provided by the informant was not corroborated by the police, and therefore cannot be deemed reliable. Although the Third Department in Balzer did find that the affidavit of the informant satisfied the Aguilar- Spinelli test since it was made under oath; against his own penal interest; based upon personal knowledge; and was corroborated by additional information obtained by the police, that holding was effectively overruled in People v. Deliz, 172 A.D.2d 877, 568 N.Y.S.2d 181, app. den., 78 N.Y.2d 921, 573 N.Y.S.2d 474, 577 N.E.2d 1066 [3rd Dep't 1991], wherein that same Court stated without equivocation that:

"... 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." (Deliz, at 878, 568 N.Y.S.2d at 182) (emphasis supplied)

Also, to the same effect are People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371, People v. Sullivan, 56 N.Y.2d 378, 452 N.Y.S.2d 373, 437 N.E.2d 1130; and cf. People v. Taylor, 73 N.Y.2d 683, 543 N.Y.S.2d 357, 541 N.E.2d 386.

Thus, Fuhrmann's sworn statement is not tested by Aguilar- Spinelli standards but rather usual tests applied to non-hearsay information. Those statements are considered reliable because if Fuhrmann lied to Detective Giardina about material facts contained in his affidavit then he could be prosecuted for giving a false sworn statement (see People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227). It is also possible that he could be prosecuted for possession of cocaine as a result of said statement.

While it certainly would be better practice for the police to make some effort to corroborate an informant's statement, especially where the informant is in custody and has himself been charged with a crime, case law does not, as yet, mandate such a practice.

Fact patterns such as this one, however, test severely the present state of the law which holds that a sworn statement alone is sufficient basis to support the reliability of the informant.

While defense counsel is correct that in most of the cases cited the police did make efforts to corroborate the informant's statement, no case specifically holds that absence of corroboration requires suppression where a sworn statement by the informant is given.

In determining the validity of the warrant, each situation must be judged on its own particular facts (People v. Marshall, 13 N.Y.2d 28, 241 N.Y.S.2d 417, 191 N.E.2d 798; cf. People v. Kreichman, 37 N.Y.2d 693, 376 N.Y.S.2d 497, 339 N.E.2d 182) and "depends on whether the showing, at the time of issuance, satisfies fundamental requirements as to the existence of probable cause ... The paramount concern, then, is what transpires at the issuance of the warrant and not what occurs thereafter" (People v. Rainey, 14 N.Y.2d 35, 248 N.Y.S.2d 33, 197 N.E.2d 527; People v. Hendricks, 25 N.Y.2d 129, 303 N.Y.S.2d 33, 250 N.E.2d 323; People v. Nieves, 36 N.Y.2d 396, 369 N.Y.S.2d 50, 330 N.E.2d 26; see People v. Candella, 171 A.D.2d 329, 578 N.Y.S.2d 286). The affidavit in support of the search warrant application is not to be read "hypertechnically" ( People v. Robinson, 68 N.Y.2d 541, 510 N.Y.S.2d 837, 503 N.E.2d 485; People v. Edwards, 69 N.Y.2d 814, 513 N.Y.S.2d 960, 506 N.E.2d 530) but rather in a "common sense and realistic fashion" ( United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684) and "in the clear light of everyday experience and accorded all reasonable inferences" ( People v. Hanlon, 36 N.Y.2d 549, 369 N.Y.S.2d 677, 330 N.E.2d 631; People v. Kane, 175 A.D.2d 881, 573 N.Y.S.2d 729). The issuing magistrate may draw all normal inferences from the allegations of fact presented to him (People v. Ianniello, 156 A.D.2d 469, 548 N.Y.S.2d 755, app. den., 75 N.Y.2d 920, 555 N.Y.S.2d 38, 554 N.E.2d 75). The reviewing court applies these same tests. Marginal cases, including those with issues of mere doubt as to the veracity of allegations contained in the supporting affidavit, are to be resolved in favor of the warrant ( People v. Rogers, 15 N.Y.2d 422, 260 N.Y.S.2d 433, 208 N.E.2d 168; People v. Williams, 119 A.D.2d 606, 500 N.Y.S.2d 778, app. den., 68 N.Y.2d 761, 506 N.Y.S.2d 1049, 497 N.E.2d 719; see People v. Alaxanian, 76 A.D.2d 187, 430 N.Y.S.2d 884, aff'd 54 N.Y.2d 725, 442 N.Y.S.2d 979, 426 N.E.2d 473; People v. Gonzalez, 150 Misc.2d 187, 574 N.Y.S.2d 893).

Applying these criteria to the instant case, the court finds that the issuing magistrate had before him sufficient uncontroverted facts to determine that probable cause existed for issuance of the warrant.

The Defendant also argues that the cocaine seized should be suppressed since it was discovered in a safe which was not specifically enumerated...