People v. Griminger

• Decision Date: 06 April 1987
• Citation: 127 A.D.2d 74,513 N.Y.S.2d 995
• Parties: The PEOPLE, etc., Respondent, v. Stewart A. GRIMINGER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 995

513 N.Y.S.2d 995

127 A.D.2d 74

The PEOPLE, etc., Respondent, v. Stewart A. GRIMINGER, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 6, 1987.

Hoffman, Pollok & Gasthalter, New York City (Edward Gasthalter and John Pollok, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Denise Parillo, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, RUBIN and EIBER, JJ.

BRACKEN, Justice.

On appeal to this court from two judgments rendered upon his pleas of guilty to three charges involving the possession and sale of marihuana, the defendant assigns error to the denial of those branches of his pretrial motion which were to dismiss the indictment and to suppress physical evidence and statements. Among the questions we address is whether, as a matter of State constitutional law, the sufficiency of the factual showing of probable cause in an application for a search warrant is to be measured by the traditional "two-pronged" test (see, Aquilar 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) or by the "totality of the circumstances" standard announced in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, reh. denied 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453. In addressing this and the other questions presented, we must accord great deference to the factual determinations of the hearing court and, because those findings are adequately supported by the record, we decline to disturb them (see, People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Watkins, 121 A.D.2d 583, 584, 503 N.Y.S.2d 439, lv. denied 68 N.Y.2d 918, 508 N.Y.S.2d 1040, 501 N.E.2d 613; People v. Gee, 104 A.D.2d 561, 479 N.Y.S.2d 267). The hearing court's factual findings, insofar as they are pertinent to the issues raised on this appeal, will be briefly summarized.

On August 23, 1983, Agents Winfree and Rosoff of the United States Secret Service were engaged in an investigation involving the passing of counterfeit currency in Nassau County. Having received information that somebody using a car registered to Gertrude Griminger, the defendant's mother, had attempted to pass a counterfeit bill at a nearby gas station, and that the car had thereafter been reported stolen, the agents, in the furtherance of their investigation, went to the Griminger home in Oceanside on that day. As they arrived, they saw the defendant place a blue bag in the trunk of a white car parked in the driveway.

Winfree and Rosoff identified themselves and were admitted into the house, where they spoke with the defendant and his mother. The agents were told that the defendant had indeed been using the car on the date of the alleged crime, although he denied any involvement in counterfeiting. He did admit, however, that he knew one Troy Lambe, who was known by the agents to be a suspect in other cases involving counterfeit currency, and the defendant agreed to notify the agents in the event he contacted Lambe.

As they were leaving the house, the agents requested and received permission to search the car for the blue bag that they had seen earlier, but their search proved unsuccessful. In response to the agents' inquiry, the defendant claimed that he did not know what had happened to the bag, and he suggested that it might have been stolen. The agents then secured the defendant's consent for a further search of the area, and discovered the bag in a garbage can adjacent to the house. The bag was opened and was found to contain a quantity of marihuana. The defendant was asked by Winfree whether the marihuana was his, and the defendant conceded that it was, although he maintained that it was strictly for personal use.

The agents then re-entered the house with the defendant and his mother, and the defendant was advised of his Miranda rights, which he acknowledged and waived. The agents questioned the defendant further regarding his involvement with counterfeit currency and his relationship with Troy Lambe, and he gave a written statement in which he admitted having been present when Lambe passed counterfeit bills. Also, the defendant agreed to cooperate with the agents in their investigation. The agents left the defendant's home with the understanding that they would return later that evening with electronic recording equipment for the purpose of obtaining an incriminating statement from Lambe.

However, upon returning to the defendant's house, the agents learned that the defendant had consulted with counsel and would not cooperate in the absence of a formal agreement with the United States Attorney. The agents contacted Assistant United States Attorney Rose, who, in turn, contacted the defendant's attorney. The attorneys arrived at an agreement whereby the defendant would not be prosecuted on any counterfeiting charge if, among other things, (1) his prior involvement was limited to having been present when counterfeit bills were passed, (2) he cooperated by introducing an undercover agent to Lambe or by meeting or speaking with Lambe and surreptitiously recording his incriminating statements, and (3) he testified truthfully at any future proceedings. With respect to the marihuana, the Assistant United States Attorney agreed that if the defendant complied with the foregoing conditions, he would not be subjected to Federal prosecution. Moreover, although it was acknowledged that he could not bind State prosecutors, the Assistant United States Attorney agreed that the marihuana would not be turned over to State authorities, thereby precluding State prosecution as a practical matter.

Thereafter, the defendant called and met with Lambe at the request of Winfree and Rosoff, but these attempts to secure incriminating statements from Lambe proved to be unsuccessful. Then, on August 25, 1983, the agents executed a Federal warrant for the arrest of Lambe. During the ensuing interrogation, they were told by Lambe's mother that the defendant was a known drug seller and that, on his previous visits to the Lambe house, the defendant had given a signal so as to warn them that he was "wired" to record his conversations with Lambe. Lambe himself told the agents that he had often seen drugs and related paraphernalia in the defendant's house and he had been present when the defendant bought and sold drugs.

Based upon the foregoing, the agents and the Assistant United States Attorney concluded that the defendant had not been truthful about his own criminal activities and had compromised the investigation and violated the cooperation agreement. Accordingly, they applied to a United States Magistrate for a warrant to search that portion of the defendant's home consisting of his upstairs bedroom and the adjacent attic for approximately 150 pounds of marihuana, an unspecified quantity of cocaine, an unknown quantity of currency, a scale and plastic bags. Although the agents had taken a written statement from Lambe, it was not included in the warrant application and, although the Magistrate arraigned Lambe shortly before the application was presented, Lambe was not produced before the Magistrate to give testimony in connection therewith. The application presented to the Magistrate consisted solely of an affidavit of Agent Winfree in which he alleged, upon information and belief, that the drugs and related contraband were presently concealed in the premises to be searched. Winfree identified the source of his information as "Confidential source 'A' ", a person known to him, who had advised him that he had often been at the premises in the company of the defendant during the preceding two months and had observed, on each occasion, marihuana and white powder identified by the defendant as cocaine, as well as a scale and quantities of United States currency and plastic bags. Furthermore, " 'A' " had advised Winfree that the defendant had provided marihuana and cocaine to him, and that the defendant had, while in his presence, sold those substances to others. " 'A' " had further advised Winfree that he had seen approximately 150 to 200 pounds of marihuana in the premises to be searched as recently as seven days previously. In addition to the information provided by " 'A' ", Winfree's affidavit included a description of the seizure of marihuana from the garbage can adjacent to the defendant's house on August 23, 1983, and the defendant's admission that the marihuana in question was his. The Magistrate was never told that " 'A' " was Troy Lambe or that " 'A' " was under arrest at the time he provided his information, nor was the Magistrate given any additional information regarding Lambe's reliability or lack thereof. In fact, Lambe had never before provided information or acted as an informant, and his reliability had never before been determined.

On August 26, 1983, Agents Winfree and Rosoff, accompanied by members of the Nassau County Police Department, executed the search warrant and seized about 10 ounces of marihuana, plastic bags, a triple-beam balance scale and more than $6,000 in currency.

The defendant was subsequently charged by indictment with one count of criminal possession of marihuana in the second degree, relating to the defendant's possession of the marihuana found in the garbage can outside his house on August 23, 1983, and one count of criminal possession of marihuana in the third degree, relating to the defendant's possession of the marihuana seized from his room during the execution of the search warrant on August 26, 1983. In addition, the defendant was charged by superior court information with one count of criminal sale of marihuana in the third degree, based upon an apparently unrelated sale of marihuana on or about May 10, 1984.

In his pretrial omnibus motion, the defendant sought dismissal of the indictment based upon the purported violation of his agreement with the Federal...