People v. Kornegay

• Decision Date: 23 May 2014
• Docket Number: No. 1–12–2573.,1–12–2573.
• Citation: 12 N.E.3d 747
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Sidney KORNEGAY, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

12 N.E.3d 747

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Sidney KORNEGAY, Defendant–Appellant.

No. 1–12–2573.

Appellate Court of Illinois, First District, Fifth Division.

May 23, 2014.

Michael J. Pelletier and Bryon M. Reina, both of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins, and Veronica Calderon Malavia, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice TAYLOR

delivered the judgment of the court, with opinion.

¶ 1 Defendant, Sidney Kornegay, was found guilty of unlawful use of a weapon by a felon and two counts of simple possession of heroin, which were merged under the one-act, one-crime doctrine. On appeal, defendant contends his counsel was ineffective for failing to file a motion to quash the search warrant and suppress evidence. Defendant also challenges fees he was assessed and contends he should receive a $5–per–day credit against his fines. We affirm the judgment and correct the fines, fees and costs order.

¶ 2 BACKGROUND

¶ 3 Defendant was arrested on November 4, 2011, after the police executed a search warrant for the basement apartment at 1254 North Lockwood Avenue, which was the residence of defendant and his girlfriend, Catoya Robinson. The police recovered a firearm and two straws, each containing a small bag of heroin. The State charged defendant with one count of unlawful use of a weapon by a felon in violation of section 24–1.1(a) of the Criminal Code of 1961 (720 ILCS 5/24–1.1(a)

(West 2010)), count I, and two counts of possession of less than one gram of a controlled substance with the intent to deliver, in violation of section 401(d) of the Criminal Code of 1961 (720 ILCS 570/401(d)

(West 2010)), counts II and III.

¶ 4 Prior to the search, on November 4, 2011, Chicago police officer Lazaro Altamirano and J. Doe, a private citizen, appeared before the circuit court of Cook County and subscribed and swore to a complaint for a search warrant, seeking to search defendant and his residence. In the complaint, Officer Altamirano averred:

“I. P.O. Lazaro Altamirano # 2722, have been an officer for the City of Chicago for the past 8 years and am currently assigned to the Narcotics Section of the Organized Crime Division. I have made hundreds of arrests for narcotics related violations, many that have led to felony convictions. On 03 November 2011, I had a conversation with a citizen that I will now refer to as J. Doe concerning narcotics sales going on at the location of 1254 N. Lockwood, Chicago, IL., Cook County. I have not included each and every fact known to me concerning this investigation. I have only included the facts that I believe are necessary to establish probable cause.

J. Doe related to me that within the last 48 hours J. Doe went to the basement located at 1254 N. Lockwood to purchase ten bags of cannabis from a male black J. Doe knows as ‘Sidney’. J. Doe arrived at 1254 N. Lockwood and entered the front common door of 1254 N. Lockwood. J. Doe approached the door leading to the basement residence and knocked on that door. After a short time the door opened and ‘Sidney’ asked J. Doe what J. Doe wanted. J. Doe stated to ‘Sidney’ that J. Doe wanted to pick up ten bags of ‘dro’. ‘Dro’ being known to J. Doe and I as street terminology for packaged cannabis for sale. ‘Sidney’ then told J. Doe to wait by the door and after a short while ‘Sidney’ returned holding a clear plastic bag that contained large amounts of Ziploc bags each containing suspect cannabis. ‘Sidney’ then tendered J. Doe ten Ziploc bags each containing suspect cannabis and in exchange J. Doe tendered ‘Sidney’ $100.00 United State currency. J. Doe related to me that as J. Doe left the residence J. Doe observed ‘Sidney’ to still be in possession of that plastic bag and there was still a large number of Ziploc bags each of which contained suspect cannabis. J. Doe related to me that those Ziploc bags were identical to the ten ‘Sidney’ tendered to J. Doe. After the above transaction with J. Doe, ‘Sidney’ then re-entered 1254 N. Lockwood.

J. Doe related to me that J. Doe relocated to an undisclosed location where J. Doe smoked some of the ‘dro’ that J. Doe purchased from ‘Sidney’. J. Doe stated to me that J. Doe received the same euphoric sensation from smoking that ‘dro’ as J. Doe has from smoking ‘dro’ on previous occasions. J. Doe related to me that J. Doe has purchased cannabis from ‘Sidney’ on a regular basis for the last month and that ‘Sidney’ has never denied J. Doe cannabis. J. Doe related to me that J. Doe has been smoking cannabis for the last three years.

J. Doe was taken past 1254 N. Lockwood, where J. Doe identified that as the residence where J. Doe met with ‘Sidney’ and purchased ten bags of cannabis from within the last 48 hours and on previous occasions. J. Doe then pointed at the windows located in front of the basement apartment and stated that this is where ‘Sidney’ lives. A picture was retrieved utilizing Chicago CLEAR data base system of a male black named KORNEGAY, Sidney I.R. # 1714551. KORNEGAY, Sidney is currently paroled to the basement apartment of 1254 N. Lockwood. That picture was shown to J. Doe and J. Doe then positively identified KORNEGAY, Sidney as the male black that sold J. Doe ten bags of cannabis within the last 48 hours. Based upon this information, this officer respectfully requests that a search warrant be issued for KORNEGAY, Sidney, a male black, D.O.B. 17 Dec. 1983, 5'06?, 170 Lbs., brown eyes, I.R. # 1714551, and the location of 1254 N. Lockwood, basement apartment of a two unit apartment building, Chicago, IL., Cook County.

I Police Officer Lazaro Altamirano swear that J. Doe appeared before the undersigned judge and was available for any questions and swore to the contents of this complaint. J. Doe's criminal history, including possible pending investigations, if any, have been presented and made available to the undersigned judge.”

¶ 5 Upon the presentation of the facts in the complaint and appearance of Officer Altamirano and J. Doe, the circuit court judge found that the complaint stated facts sufficient to show probable cause and issued a warrant to search “KORNEGAY, Sidney, a male black, D.O.B/ 17 Dec 1983, 5'06?, 170 lbs, brown eyes, I.R. # 1714551” and “the premises of 1254 N. Lockwood, basement apartment of a two unit apartment building, Chicago IL., Cook County.” The search warrant further directed the seizure of instruments, articles, and things which had been used in the commission of, or which constitute evidence of, the offense of unlawful possession of cannabis, including any cannabis, any documents showing residency, any paraphernalia used in the weighting, cutting or mixing of illegal drugs, and any money or any records detailing illegal drug transactions.

¶ 6 At defendant's bench trial on July 6, 2013, the State presented one witness, Officer Altamirano. He testified that on November 4, 2011, around 2 p.m. he was part of a team that was executing a search warrant at 1254 North Lockwood Avenue. Officer Altamirano entered through an open front door and proceeded to the basement apartment, where defendant was coming up the stairs. Officer Altamirano then informed defendant that they were executing a search warrant for the basement apartment and he was named in the search warrant. Defendant was then handcuffed and put in a chair in the living room.

¶ 7 Officer Altamirano further testified that items subject to the warrant were seized. In the kitchen, the officers found two straws each containing a Ziploc bag with suspect heroin inside. They also found a coffee grinder in a box inside a kitchen closet which contained a powdery substance. Officer Altamirano explained that, based on his experience, he believed the substances to be heroin. He also found a bundle of money containing $65. Another officer found an unloaded semiautomatic Beretta with the serial numbers defaced. Finally, he testified he found a debit card with the name Sidney Kornegay in the bedroom and a ComEd bill addressed to Sidney Kornegay at 1254 North Lockwood.

¶ 8 Officer Altamirano testified as to statements made by defendant during the execution of the search warrant. While Officer Altamirano was in the kitchen securing the firearm in a box, defendant, who was still sitting in the living room, stated that the gun had been left by a friend. Once defendant and the recovered items were transported to the Homan Square police station for processing, he was read his Miranda rights. In an interview room with Officer Altamirano and Officer Pulaski, defendant stated that he knew he should not have the gun, since he was a convicted felon.

¶ 9 During cross-examination, Officer Altamirano testified that he conducted a surveillance of the apartment building before executing the search warrant. He saw some individuals enter and exit the building. He did not stop these individuals and they did not have anything in their hands that looked like narcotics.

¶ 10 The parties stipulated to the fact that a forensic scientist would testify that there were 0.4 grams of heroin in the two Ziploc bags and that the powder in the coffee grinder was also heroin. After the State's case in chief defendant moved for a directed verdict. The trial court granted a directed verdict as to counts II and III with respect to the intent to deliver. The court explained that what remained was straight possession for counts II and III.

¶ 11 Defendant presented one witness, Catoya Robinson. She testified that she was defendant's girlfriend and was present when the warrant was executed. She testified that they had been living there for four months, and prior to that, Sidney's father, also named Sidney Kornegay, had lived there. She testified that defendant's father was paying the light bill. She testified that on November 4, 2011, a police officer entered the apartment, searched the bedroom and then let in more officers...