People v. Rayner

• Decision Date: 18 March 1991
• Citation: 567 N.Y.S.2d 764,171 A.D.2d 820
• Parties: The PEOPLE, etc., Respondent, v. Keith RAYNER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 764

567 N.Y.S.2d 764

171 A.D.2d 820

The PEOPLE, etc., Respondent, v. Keith RAYNER, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 18, 1991.

Philip L. Weinstein, New York City (Joanne Legano, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Gary Fidel, of counsel; Lynda White on the brief), for respondent.

Before MANGANO, P.J., and BROWN, SULLIVAN, HARWOOD and MILLER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cohen, J.), rendered May 10, 1988, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to controvert a search warrant.

ORDERED that the judgment is affirmed.

Under the Aguilar- Spinelli rule (see, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637) when probable cause for the issuance of a warrant depends on hearsay statements, the affiant who applies for the warrant must establish that the informant was reliable and had some basis for the information he transmitted to the affiant (see, People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451; People v. Burks, 134 A.D.2d 604, 521 N.Y.S.2d 718). Here, the evidence establishes that the informant used by the detective who applied for the warrant was reliable and that the information he gave was based upon personal observations.

The defendant further asserts that the detective lied in his affidavit as to a material fact so as to create probable cause. When the credibility and accuracy of the allegations made by the affiant in a search warrant affidavit are challenged, the defendant must establish by a preponderance of the evidence that the allegations were perjurious or made with a reckless disregard for the truth (see, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667; People v. Tambe, 71 N.Y.2d 492, 504, 527 N.Y.S.2d 372, 522 N.E.2d 448; People v. Proctor, 155 A.D.2d 624, 547 N.Y.S.2d 673). The defendant has not sustained his burden.