People v. Penna
| Decision Date | 08 July 1976 |
| Citation | 53 A.D.2d 941,385 N.Y.S.2d 400 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Ronald Alfred PENNA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Samuel J. Castellino, Elmira, for appellant (Martin G. Weinberg, Boston, Mass., appeared pro hac vice and argued the appeal).
D. Bruce Crew, III, Chemung County Dist. Atty., Elmira, for respondent.
Before KOREMAN, P.J., and KANE, MAIN, HERLIHY and REYNOLDS, JJ.
Appeal from a judgment of the County Court of Chemung County, rendered March 28, 1975, convicting defendant, upon his plea of guilty, of the crime of criminal sale of a controlled substance in the fifth degree, and sentencing him to an indeterminate term of imprisonment not to exceed five years.
On December 18, 1973, defendant was indicted for the crimes of criminal sale of a controlled substance in the fifth degree (Penal Law, § 220.34, subd. 1, par. (c)) and criminal possession of a controlled substance in the fifth degree (Penal Law, § 220.09, subd. 10). Said indictment arose out of an alleged incident in the Town of Erin, Chemung County, on November 9, 1973 wherein defendant, knowingly and unlawfully, sold a controlled substance, to wit, marijuana, to one Charles Campbell and one Anthony Redfield and possessed more than one ounce of a substance containing marijuana. Following the denial of his motion to suppress the evidence obtained through eavesdropping and search warrants, defendant ultimately pleaded guilty to criminal sale of a controlled substance in the fifth degree in full satisfaction of the indictment, and he was thereafter sentenced as noted above.
On this appeal, defendant initially contends that the facts alleged in support of the eavesdropping warrant were insufficient to establish probable cause for the issuance thereof. We disagree. Involved here is a wiretap on a certain telephone located in the residence of three named individuals allegedly engaged in illegally trafficking in drugs, and, pursuant to section 700.15 of the Criminal Procedure Law, an eavesdropping warrant covering that telephone could issue only:
2. Upon probable cause to believe that a particularly described person is committing, has committed, or is about to commit a particular designated offense; and
3. Upon probable cause to believe that particular communications concerning such offenses will be obtained through eavesdropping.
Moreover, since the affidavit of Investigator Crowley of the Bureau of Criminal Investigation in support of the warrant was based in part on hearsay information from undisclosed informants, such information could constitute probable cause only where the trustworthiness of both the informants and their information were established by facts and circumstances alleged in the affidavit (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; People v. Hanlon, 36 N.Y.2d 549, 369 N.Y.S.2d 677, 330 N.E.2d 631).
In this instance, we find that these various statutory and case law requirements have been fulfilled. With regard to the reliability of the confidential informants, the affiant stated that information received from them in the past had resulted in convictions for drug violations. Additionally, the affiant personally observed one informant making...
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