People v. Serrano

• Decision Date: 25 March 1999
• Citation: 710 N.E.2d 655,93 N.Y.2d 73,688 N.Y.S.2d 90
• Parties: , 710 N.E.2d 655, 1999 N.Y. Slip Op. 2629 The PEOPLE of the State of New York, Respondent, v. Rafael SERRANO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 90

688 N.Y.S.2d 90

93 N.Y.2d 73, 710 N.E.2d 655, 1999 N.Y. Slip Op. 2629

The PEOPLE of the State of New York, Respondent, v. Rafael SERRANO, Appellant.

Court of Appeals of New York.

March 25, 1999.

Robert E. Carrigan, of the New Jersey Bar, admitted pro hac vice, for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Eleanor J. Ostrow and Mark Dwyer of counsel), for respondent.

OPINION OF THE COURT

LEVINE, J.

Defendant was convicted of killing the occupant of an apartment on New York City's Lower East Side while robbing him of a large quantity of marihuana. Two photographs were introduced in evidence by the prosecution. The first showed him on some other occasion posing with the other suspect in the robbery homicide. The second depicted him also at another date, holding a black, long-barreled handgun which a witness testified resembled the weapon defendant threatened him with at the crime scene just before the victim was shot. The photographs were seized pursuant to a search warrant for the home of defendant's mother issued by a Justice of the Supreme Court. The warrant recited that it was based on the affidavit of the applicant police officer, and upon his testimony and the testimony of an unnamed confidential informant before the issuing Justice.

When defendant moved for suppression of the evidence, the People applied for a protective order sealing the warrant and supporting affidavit on the ground that they would reveal the identity of the confidential informant and thereby pose a serious risk to his life (see, CPL 240.50 ). The suppression court held an ex parte in camera hearing, at which only the Assistant District Attorney who presented the warrant application to the issuing Justice testified. He confirmed that the Justice had questioned the confidential informant, the transcript of which was unavailable at that point in time because of the illness of the court reporter. The Assistant District Attorney also described the urgency of maintaining the absolute secrecy of the informant's identity. The court granted the protective order, finding that the affidavit and warrant could not be revealed to defendant, even in redacted form, without jeopardizing the informant's safety.

The court denied defendant's motion to suppress, holding that the warrant affidavit itself established probable cause and therefore, suppression could be denied without either examining the informant personally, or examining the transcript of his testimony before the issuing Justice. The Appellate Division (246 A.D.2d 430, 668 N.Y.S.2d 172) affirmed the conviction, agreeing that the warrant affidavit established probable cause to issue the warrant. A Judge of this Court granted leave to appeal.

Of the various claims defendant raises on this appeal, only two merit extended discussion. The first is that the suppression court erred in failing to hold a Darden-type hearing on his motion to suppress (see, People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49), in which the confidential informant would have been produced before the court for in camera examination to demonstrate his actual existence and credibility. Defendant contends that People v. Castillo, 80 N.Y.2d 578, 592 N.Y.S.2d 945, 607 N.E.2d 1050, requires such a hearing in all cases where the court denies a defendant access to the search warrant and supporting affidavits. We disagree.

While it is true that in Castillo, the informant was produced and questioned before the suppression court even though he had testified before the issuing Magistrate, that case does not hold that such a procedure is invariably necessary whenever the search warrant papers are sealed. To the contrary, Castillo states that where the suppression court has before it the warrant papers and the transcript of the informant's testimony before the issuing Judge, "[t]he court [is] left with the relatively uncomplicated task of deciding whether, based on [the warrant papers and testimony] * * *, the issuing Judge reasonably could have concluded that probable cause existed" (People v. Castillo, 80 N.Y.2d, at 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050, supra [emphasis supplied] ). This clearly contravenes defendant's reading of Castillo as always requiring a Darden hearing when a defendant has been denied discovery of the identity of the informant and of the warrant application papers. Moreover, in Castillo, as the Appellate Division observed, one reason the informant was brought before the suppression court was to disprove "the defense claim that the warrant was tainted by a prior illegal entry" (People v. Castillo, 176 A.D.2d 609, 610, 575 N.Y.S.2d 49). No such circumstance exists in this case.

Furthermore, the reasons for requiring a Darden hearing do not apply in this case. Such a hearing is required "where there is insufficient evidence to establish probable cause apart from the testimony of the arresting officer as to communications received from an informer" (People v. Darden, 34 N.Y.2d, at 181, 356 N.Y.S.2d 582, 313 N.E.2d 49, supra; People v. Adrion, 82 N.Y.2d 628, 633, 606 N.Y.S.2d 893, 627 N.E.2d 973). The purpose of a Darden hearing is "to protect against the contingency, of legitimate concern to a defendant, that the informer might have been wholly imaginary and the communication from him entirely fabricated" (People v. Darden, at 182, 356 N.Y.S.2d 582, 313 N.E.2d 49, supra; People v. Adrion, at 633, 606 N.Y.S.2d 893, 627 N.E.2d 973, supra ).

Where, as here, however, the informant had appeared and given testimony before the Magistrate who issued the search warrant, verification of the existence of the informant, and of what was told to the police, will have already been achieved and need not be duplicated before the suppression court (see, People v. Salgado, 57 N.Y.2d 662, 454 N.Y.S.2d 69, 439 N.E.2d 878; People v. Carpenito, 171 A.D.2d 45, 50, 574 N.Y.S.2d 218, affd. 80 N.Y.2d 65, 68, 587 N.Y.S.2d 264, 599 N.E.2d 668). Again, People v. Castillo (supra ) is not to the contrary. Indeed, Castillo (80 N.Y.2d, at 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050, supra ) cited with approval People v. Rodriguez (182 A.D.2d 439, 582 N.Y.S.2d 166), which held that it was not necessary for a confidential informant to be present at a Darden hearing before the suppression court "since he had already been produced before the warrant-issuing Magistrate who was able to establish his existence and reliability" (id., at 440, 582 N.Y.S.2d 166).

We, however, find merit in defendant's alternative position, namely, that the suppression court erred in failing to examine the transcript of the informant's testimony before the issuing Justice to determine whether the warrant was issued upon probable cause and that the formal requirements of CPL 690.40(1) for taking such testimony had been substantially...