People v. Harris

• Decision Date: 17 June 2021
• Docket Number: KA 17-00533,305
• Citation: 145 N.Y.S.3d 897 (Mem),195 A.D.3d 1537
• Parties: The PEOPLE of the State of New York, Respondent, v. James HARRIS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1537

145 N.Y.S.3d 897 (Mem)

The PEOPLE of the State of New York, Respondent,

v.James HARRIS, Defendant-Appellant.

305

KA 17-00533

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 17, 2021

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (NIKKI KOWALSKI OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the second degree ( Penal Law § 220.18 [1] ), defendant contends that Supreme Court erred in refusing to suppress the evidence seized pursuant to an eavesdropping warrant. We reject that contention.

Contrary to defendant's contention that the warrant application did not meet the requirements of article 700 of the CPL, the record supports the court's determination that the application for the eavesdropping warrant established that "normal investigative procedures ha[d] been tried and ha[d] failed, or reasonably appear[ed] to be unlikely to succeed if tried, or to be too dangerous to employ" ( CPL 700.15 [4] ; see People v. Rabb , 16 N.Y.3d 145, 152-153, 920 N.Y.S.2d 254, 945 N.E.2d 447 [2011], cert denied 565 U.S. 963, 132 S.Ct. 452, 453, 181 L.Ed.2d 294 [2011]). In affidavits supporting that warrant application, task force members detailed the traditional investigative techniques, including physical surveillance and the use of confidential informants, that they utilized prior to seeking the eavesdropping warrant. The task force members further averred that, despite their continued attempts, those traditional investigative techniques alone would not permit them to identify and successfully prosecute all members of the drug distribution ring that they were investigating (see People v. Gray , 57 A.D.3d 1473, 1474, 870 N.Y.S.2d 672 [4th Dept. 2008], lv denied 12 N.Y.3d 854, 881 N.Y.S.2d 665, 909 N.E.2d 588 [2009] ; see generally People v. Fonville , 247 A.D.2d 115, 118-119, 681 N.Y.S.2d 420 [4th Dept. 1998] ). Furthermore, based on the information provided in the supporting affidavits, "it cannot be said that the [task force] relied solely on past investigations into [drug conspiracies] in general to support the[ ] assertion that normal investigative techniques would be generally unproductive in the [current] investigation" ( Rabb , 16 N.Y.3d at 154, 920 N.Y.S.2d 254, 945 N.E.2d 447 ).

Additionally, we reject defendant's contention that there was no probable cause to support issuance of the eavesdropping warrant. "The probable cause necessary for issuance of an eavesdropping warrant is measured by the same standard applicable to issuance of a search warrant" ( People v. Truver , 244 A.D.2d 990, 991, 665 N.Y.S.2d 995 [4th Dept. 1997] ; see People v. Tambe , 71 N.Y.2d 492, 500, 527 N.Y.S.2d 372, 522 N.E.2d 448 [1988] ), and it is well settled that "[p]robable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but[, rather, it] merely [requires] information sufficient to support a reasonable belief that an offense has been or is being committed or that the evidence of a crime may be found in a certain place" ( People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ). Here, we conclude that information in the warrant application provided the court with probable cause to issue the eavesdropping warrant (see People v. Tillan , 125 A.D.3d 1389, 1389, 1 N.Y.S.3d 723 [4th Dept. 2015], lv denied 25 N.Y.3d 1077, 12 N.Y.S.3d 629, 34 N.E.3d 380 [2015] ; People v. Lazo , 16 A.D.3d 1153, 1153-1154, 790 N.Y.S.2d 902 [4th Dept. 2005], lv denied 4 N.Y.3d 887, 798 N.Y.S.2d 733, 831 N.E.2d 978 [2005] ). Contrary to defendant's contention, the task force members’...