People v. Myers

• Decision Date: 17 July 1997
• Citation: 241 A.D.2d 705,660 N.Y.S.2d 456
• Parties: The PEOPLE of the State of New York, Respondent, v. James N. MYERS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 456

660 N.Y.S.2d 456

241 A.D.2d 705

The PEOPLE of the State of New York, Respondent, v. James N. MYERS, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 17, 1997.

Marcel J. Lajoy, Albany, for appellant.

Kenneth R. Bruno, Acting District Attorney (Bruce E. Knoll, of counsel), Troy, for respondent.

Before WHITE, J.P., and CASEY, PETERS, SPAIN and CARPINELLO, JJ.

SPAIN, Justice.

Appeals (1) from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered January 18, 1995, which revoked defendant's probation and imposed a sentence of imprisonment, and (2) by permission, from an order of said court, entered September 11, 1996, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing.

In March 1990 defendant pleaded guilty in County Court (Dwyer Jr., J.), to the crime of assault in the second degree and in May 1990 he was sentenced to a term of six months' imprisonment and five years' probation. In July 1994 the Rensselaer County Probation Department (hereinafter Department) filed a violation petition alleging that defendant violated his probation by virtue of a conviction in another county for assault in the third degree. However, in September 1994 County Court (McGrath, J.) dismissed the petition but advised defendant, on the record, that he would remain on probation.

In a deposition supporting an application for a search warrant, City of Troy Police Officer Joseph West states that he and another police officer observed defendant carrying a large bag of marihuana into his residence in the City of Troy, Rensselaer County, on September 27, 1994. Within a few hours West obtained a search warrant and proceeded to defendant's residence where police discovered, inter alia, a loaded rifle, a semiautomatic pistol, a hypodermic syringe, $2,547 in cash, 25 rings and 14 gold chains; notably, no marihuana was found. Defendant was arrested and charged with numerous crimes relating to the items seized; thereafter, the Department filed another violation petition alleging that defendant violated the terms and conditions of his probation. Following a suppression hearing County Court, fully crediting West's testimony, denied defendant's motion to suppress the evidence seized through the search warrant for lack of probable cause. At the conclusion of the ensuing probation violation hearing, defendant was found to have violated the terms of his probation which were part of his May 1990 sentence; County Court revoked his probation and sentenced him to an indeterminate term of imprisonment of 2 1/3 to 7 years. Thereafter, County Court denied, without a hearing, defendant's subsequent motion pursuant to CPL 440.20 to set aside the sentence. Defendant appeals from (1) the judgment revoking his probation and imposing a sentence of imprisonment, and (2) the order denying his motion to set aside the sentence.

We affirm. We reject defendant's contention that evidence seized pursuant to the search warrant should have been suppressed because the facts set forth in the application for the search warrant were false and unreliable. In order to justify the exclusion of evidence on the ground that a search warrant application contains false statements, "a defendant must show by a preponderance of the evidence that the false statements 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. Lavin, 220 A.D.2d 886, 887-888, 632 N.Y.S.2d 338, lv. denied 87 N.Y.2d 904, 641 N.Y.S.2d 234, 663 N.E.2d 1264, quoting People v. Quinones, 139 A.D.2d 774, 527 N.Y.S.2d 520, lv. denied 72 N.Y.2d 923, 532 N.Y.S.2d 857, 529 N.E.2d 187). Furthermore, a suppression court's resolution of credibility issues is entitled to great weight on appeal (see, People v. Griffin, 234 A.D.2d 718, 720, 651 N.Y.S.2d 645, 647; People v. Gagliardi, 232 A.D.2d 879, 880-881, 649 N.Y.S.2d 214, 216). Here, the statements in West's supporting deposition were based on his personal observations and are consistent with his testimony at the suppression hearing.

We also reject defendant's contention that County Court erred in failing to grant his motion to suppress upon discrepancies between the application, the warrant, the incident report and West's testimony. Upon our review of the...