People v. Rodriguez
| Decision Date | 15 May 1989 |
| Parties | The PEOPLE, etc., Respondent, v. John RODRIGUEZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Jonathan C. Scott, St. James, for appellant.
Francis D. Phillips II, Dist. Atty., Goshen (Maryellen Black Albanese, of counsel), for respondent.
Before LAWRENCE, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Orange County (King, J.), rendered January 12, 1988, convicting him of attempted criminal sale of a controlled substance in the fourth degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Slobod, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
The defendant sought suppression of evidence seized from an apartment he occupied, on the ground that the search warrant was invalid. We decline to disturb the hearing court's determination that the absence of the issuing magistrate's signature from the jurat on the police officer's affidavit, did not render the warrant invalid. An application in writing for a search warrant must be "subscribed and sworn to by a public servant" (CPL 690.35[1]. The hearing court accepted as credible the testimony by the police detective who applied for the warrant that the magistrate had asked him if the statements in his affidavit were true. The detective's signature appears next to the jurat. Furthermore, although the magistrate could not testify as to the particulars of his conversation with the detective, he stated that he would not have issued the warrant unless the detective had signed the affidavit in his presence. Under the circumstances, we agree with the hearing court that there was substantial compliance with CPL 690.35(1) (see People v. Zimmer, 112 A.D.2d 500, 490 N.Y.S.2d 912; but see, People v. Coburn, 85 Misc.2d 673, 380 N.Y.S.2d 944).
The application for the warrant was based on information provided by two confidential informants and on evidence seized during a warrantless search of a truck the defendant was driving. The hearing court determined that the evidence seized from the truck should be suppressed, but concluded that the information obtained from the informants established that the issuance of the warrant was based on probable cause.
Under the Aguilar -Spinelli rule ( 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 police must establish that the informant was reliable and...
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