People v. Luciano

• Decision Date: 20 July 2017
• Docket Number: 108992.
• Citation: 152 A.D.3d 989,59 N.Y.S.3d 547
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexander LUCIANO, Appellant.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 989

59 N.Y.S.3d 547

The PEOPLE of the State of New York, Respondent,

v.Alexander LUCIANO, Appellant.

108992.

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

July 20, 2017.

Kindlon Shanks & Associates, Albany (Terrence L. Kindlon of counsel), for appellant.

Joel E. Abelove, District Attorney (Vincent J. O'Neill of counsel), for respondent.

Before: PETERS, P.J., ROSE, MULVEY, AARONS and PRITZKER, JJ.

MULVEY, J.

Appeal from a judgment of the County Court of Rensselaer County (Young, J.), rendered July 18, 2016, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the fourth degree (two counts) and criminal possession of a controlled substance in the seventh degree (two counts) and the violation of unlawful possession of marihuana.

In April 2015, the City of Troy Police Department obtained a search warrant for defendant's residence. The search warrant was predicated on two controlled buys of marihuana by a confidential informant (hereinafter CI) conducted in March and April 2015 from defendant. When the search warrant was executed, as relevant here, the police seized heroin and MDMA and arrested defendant.¹ In an October 2015 indictment, defendant was charged with: criminal possession of a controlled substance in the third degree (count 1, heroin with intent to sell); criminal possession of a controlled substance in the fourth degree (count 2, heroin with an aggregate weight of one-eighth ounce or more); criminal possession of a controlled substance in the fourth degree (count 3, MDMA); criminal possession of a controlled substance in the fifth degree (count 4, heroin with intent to sell); criminal possession of a controlled substance in the seventh degree (count 5, MDMA); unlawful possession of marihuana (count 6); and criminally using drug paraphernalia in the second degree (counts 7 and 8). Defendant moved for suppression of the evidence obtained in the search, alleging that the search warrant was not based upon probable cause. After County Court conducted an evidentiary hearing and an in camera Darden examination of the CI, the court denied defendant's motion.

Following a jury trial, defendant was found guilty of criminal possession of a controlled substance in the seventh degree under counts 1, 4 and 5, criminal possession of a controlled substance in the fourth degree under counts 2 and 3 and unlawful possession of marihuana under count 6.² At sentencing, since the convictions under counts 1 and 4 both pertained to the same heroin, count 4 was dismissed as duplicitous. The court sentenced defendant as a second felony drug offender to the maximum term of eight years in prison followed by three years of postrelease supervision on his convictions under counts 2 and 3, one year in jail on his convictions under counts 1 and 5 and time served on his conviction under count 6, all sentences to run concurrently. Defendant appeals.

Initially, we note that defendant's convictions under counts 1 and 5 of the indictment for criminal possession of a controlled substance in the seventh degree must be dismissed as inclusory concurrent counts of the convictions for criminal possession of a controlled substance in the fourth degree under counts 2 and 3, respectively (see CPL 300.40[3][b] ; People v. Lee, 39 N.Y.2d 388, 390, 384 N.Y.S.2d 123, 348 N.E.2d 579 [1976] ; People v. Harris, 147 A.D.3d 1328, 1331, 47 N.Y.S.3d 528 [2017] ; People v. Guerrero, 129 A.D.3d 1102, 1103, 12 N.Y.S.3d 272 [2015], lv. denied 26 N.Y.3d 968, 18 N.Y.S.3d 604, 40 N.E.3d 582 [2015] ).

We turn next to defendant's contention that County Court erred when it denied his suppression motion with respect to the evidence seized during the search. Defendant argues that, since the testimony of the CI at the Darden hearing contradicted the statements made by the police officer in the application for the search warrant, the People failed to establish the reliability of the CI and, therefore, the search warrant was not supported by probable cause. "[A] search warrant application must entail sufficient information to support a reasonable belief that evidence of a crime will be found in a particular place" ( People v. Pasco, 134 A.D.3d 1257, 1258, 20 N.Y.S.3d 751 [2015] ). It "may be validly based upon hearsay information found to be reliable [and,] [i]n this regard, an affidavit by a police officer which is based upon the observations made by a fellow police officer when the two are engaged in a common investigation furnishes a reliable basis for the warrant" ( People v. Marshall, 57 A.D.3d 1163, 1164, 869 N.Y.S.2d 652 [2008] [internal quotation marks, ellipsis and citation omitted] ).

At the evidentiary hearing and in his sworn statement in support of the application for the search warrant, John A. Comitale Jr., a detective with the Troy Police Department, stated that the CI "is a proven and reliable [i]nformant, who has participated in numerous controlled narcotics [buys] for the Troy Police Department which have resulted in numerous person(s) being [i]ndicted and/or arrested."

County Court found that the testimony of the CI at the Darden hearing established that this was the first controlled buy that the CI participated in for the police. This finding contradicted the testimony and statement of Comitale with respect to the CI's proven reliability as a CI. Notwithstanding this contradiction, County Court found that the application contained sufficient probable cause to support the issuance of the search warrant based on Comitale's explanation of the CI's two controlled buys of marihuana at defendant's residence. County Court further found that defendant had not demonstrated by a preponderance of the evidence that the false statements made by Comitale regarding the CI's reliability were made "knowingly and intentionally, or with reckless disregard for the truth and that without such misstatements, the remaining allegations would have been insufficient to establish probable cause" ( People v. Myers, 241 A.D.2d 705, 706, 660 N.Y.S.2d 456 [1997] [internal quotation marks, ellipsis and citations omitted], lv. denied 91 N.Y.2d 877, 668 N.Y.S.2d 575, 691 N.E.2d 647 [1997] ; see People v. Marshall, 57 A.D.3d at 1165, 869 N.Y.S.2d 652 ).

Comitale further stated that the CI informed him that large quantities of marihuana could be purchased from defendant and that he had been in defendant's residence on several occasions. This statement, without more, would be insufficient to support a finding of probable cause in a search warrant application since the CI "had no record of reliability" ( People v. Mitchell, 57 A.D.3d 1232, 1232, 870 N.Y.S.2d 541 [2008], lv. denied 12 N.Y.3d 760, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009] ). However, based on the information from the CI, the police conducted two controlled buys of marihuana at defendant's residence. Probable cause to believe that defendant was involved in the sale of marihuana was then supported not only by the information furnished by the CI, but also by information from the police officers directly involved in the controlled buy operations (see People v. Marshall, 57 A.D.3d at 1165, 869 N.Y.S.2d 652 ). The application for the search warrant set forth Comitale's training and experience as a police officer, including his experience as a detective in the Troy Police Department's Narcotics Unit. In the application and in his testimony at the suppression hearing, Comitale related information provided to him by the police officers directly involved in the controlled buy operations who had personally listened to the pre-buy phone calls with defendant, as well as audio transmissions from the transmitter that the CI was wearing during the controlled buys. He also related the observations of the CI provided by the police officers prior to, during and after the buys. Under the circumstances here, the information supplied by Comitale, based on his own knowledge and the hearsay statements of the other officers involved in the controlled buys, sufficiently corroborated the CI's statement that large quantities of marihuana could be purchased from defendant (see People v. Van Hoesen, 145 A.D.3d 1183, 1184, 44 N.Y.S.3d 212 [2016] ). We therefore find that there was sufficient information presented to the issuing court to support the issuance of the search warrant.

Defendant next argues that his conviction of criminal possession of a controlled substance in the fourth degree under count 3 is not supported by legally sufficient evidence and is against the weight of the evidence. At the close of the People's case, defendant moved to dismiss the entire indictment, but failed to specify the grounds upon which count 3 should be dismissed. Thus, his legal sufficiency argument is "unpreserved for review in the absence of a trial motion to dismiss premised on the specific grounds now being raised on appeal" ( People v. Novak, 148 A.D.3d 1352, 1353, 50 N.Y.S.3d 577 [2017] ; see People v. Thorpe, 141 A.D.3d 927, 928, 35 N.Y.S.3d 769 [2016], lv. denied 28 N.Y.3d 1031, 45 N.Y.S.3d 383, 68 N.E.3d 112 [2016] ). "Nevertheless, we must, as part of our weight of the evidence review, evaluate whether the elements of each crime were proven beyond a reasonable doubt" ( People v. Collier, 146 A.D.3d 1146, 1147–1148, 46 N.Y.S.3d 276 [2017] [citations omitted]; see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

In his testimony, defendant denied possessing the MDMA and a different verdict would not have been unreasonable if the jury decided to believe defendant's testimony. Thus, we, "like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citation omitted]; accord People v. Collier, 146 A.D.3d at 1148, 46 N.Y.S.3d 276 ). As...