People v. Oliver

• Decision Date: 02 May 2019
• Docket Number: 108527
• Citation: 99 N.Y.S.3d 135,172 A.D.3d 1457
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael OLIVER, Appellant.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1457

99 N.Y.S.3d 135

The PEOPLE of the State of New York, Respondent,

v.Michael OLIVER, Appellant.

108527

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

Calendar Date: March 20, 2019

Decided and Entered: May 2, 2019

Cynthia G. Kasnia, Poughkeepsie, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Devine, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered December 1, 2014, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree.

On December 3, 2013, members of various federal and state law enforcement agencies executed a search warrant at defendant's second-floor apartment located on Washington Avenue in the City of Albany. Upon execution of the warrant, police discovered more than eight ounces of cocaine in the apartment. Defendant was arrested at the scene and subsequently charged by indictment with criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree. As part of his omnibus motion, defendant moved to suppress the physical evidence obtained during the search. Following a Mapp hearing, County Court denied defendant's suppression motion. On the third day of trial, defendant pleaded guilty to the indictment. He was thereafter sentenced, as a nonviolent predicate offender, to a prison term of 16 years, to be followed by five years postrelease supervision, for his conviction of criminal possession of a controlled substance in the first degree and a prison term of 10 years, to be followed by three years of postrelease supervision, for his conviction of criminal possession of a controlled substance in the third degree, with the sentences to run concurrently. Defendant now appeals.

Defendant contends that County Court should have granted his motion to suppress the evidence seized because there was insufficient evidence contained in the search warrant application to establish the reliability of the confidential informant (hereinafter CI). We disagree. A search warrant issued by a judge is presumed to be valid (see People v. Castillo, 80 N.Y.2d 578, 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050 [1992], cert denied 507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477 [1993] ; People v. Brewer, 155 A.D.3d 1447, 1449, 66 N.Y.S.3d 342 [2017] ) and will be upheld as long as the application provides "sufficient information to support a reasonable belief that evidence of a crime will be found in a particular place" ( People v. Luciano, 152 A.D.3d 989, 991, 59 N.Y.S.3d 547 [2017] [internal quotation marks and citation omitted], lv denied 30 N.Y.3d 1020, 70 N.Y.S.3d 453, 93 N.E.3d 1217 [2017] ). Where a search warrant application is based upon information obtained from a CI, the application must demonstrate the veracity and/or reliability of the CI and the basis of the CI's knowledge (see People v. Chisholm, 21 N.Y.3d 990, 994, 972 N.Y.S.2d 202, 995 N.E.2d 164 [2013] ; People v. Wolfe, 103 A.D.3d 1031, 1033, 962 N.Y.S.2d 403 [2013], lv denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ). Notably, there is "no one acid test of reliability," and a CI will be found reliable where it is demonstrated that he or she has provided accurate information in the past and/or where the information provided by the CI is corroborated by independent police investigation ( People v. Rodriguez, 52 N.Y.2d 483, 489, 438 N.Y.S.2d 754, 420 N.E.2d 946 [1981] ; see People v. Palin, 158 A.D.3d 936, 937–938, 70 N.Y.S.3d 616 [2018], lv denied 31 N.Y.3d 1016, 78 N.Y.S.3d 286, 102 N.E.3d 1067 [2018] ; People v. Vargas, 72 A.D.3d 1114, 1115–1116, 898 N.Y.S.2d 323 [2010], lv denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010] ).

Here, the search warrant application for the apartment was supported by the affidavit of Justin Jones, a special agent with Immigration and Customs Enforcement who was assigned to investigate narcotics trafficking with the Drug Enforcement Agency. Jones' affidavit indicates that he received information from an undisclosed CI indicating that, over the past five years, defendant had regularly sold large quantities of cocaine to the CI. The CI informed the police that the drug transactions were generally initiated by a text message to defendant where an agreement would be reached with respect to the amount of cocaine to be purchased and the meet location for the transaction. Based on the information provided by the CI, on December 3, 2013, Jones had the CI send a text message to defendant and set up a controlled buy at defendant's apartment. Jones then searched the CI for contraband, equipped him with a recording device and prerecorded buy money and thereafter supervised the controlled buy, listening in "real time" as the CI entered defendant's Washington Avenue apartment and purchased approximately 100 grams of cocaine for $ 4,100. Upon exiting defendant's apartment, the CI "turned over a quantity of white substance" to law enforcement, which subsequently field-tested positive for the presence of cocaine. The CI also indicated that he had observed additional large quantities of cocaine within defendant's apartment. Given the CI's history of drug purchases from defendant, his observations within defendant's apartment and the corroboration provided by law enforcement's surveillance of the CI's controlled buy at defendant's apartment and confirmation that the substance purchased by the CI was, in fact, cocaine, we find that there was sufficient information in the search warrant application to establish the CI's reliability (see People v. Brown, 167 A.D.2d 1331, 1333, 90 N.Y.S.3d 380 [2018] ; People v. Palin, 158 A.D.3d at 937–938, 70 N.Y.S.3d 616 ; People v. Cavallaro, 123 A.D.3d 1221, 1222, 998 N.Y.S.2d 516 [2014] ; People v. Tyrell, 248 A.D.2d 747, 748, 670 N.Y.S.2d 60 [1998], lv denied 92 N.Y.2d 907, 680 N.Y.S.2d 71, 702 N.E.2d 856 [1998] ).

We reject defendant's contention that the search warrant was improperly executed. Contrary to defendant's assertion, the entry and search of defendant's apartment by law enforcement did not occur prior to issuance of the subject search warrant. The testimony at the suppression hearing established that, immediately following the CI's controlled buy from defendant, Jones and an Albany County...