People v. Simon

• Decision Date: 15 April 1983
• Citation: 460 N.Y.S.2d 998,118 Misc.2d 745
• Parties: The PEOPLE of the State of New York v. David SIMON, Defendant. The PEOPLE of the State of New York v. Diana SCHOFIELD, Defendant.
• Court: New York Supreme Court

Page 998

460 N.Y.S.2d 998

118 Misc.2d 745

The PEOPLE of the State of New York v. David SIMON, Defendant.

The PEOPLE of the State of New York v. Diana SCHOFIELD, Defendant.

Supreme Court, Monroe County.

April 15, 1983.

Christopher J. Enos, Rochester, for defendant Diana schofield.

Anthony F. Leonardo, Jr., Rochester, for defendant David Simon.

Donald O. Chesworth, Jr., Monroe County Dist. Atty., (Melvin Bressler, Rochester, of counsel), for the People.

DECISION

DAVID O. BOEHM, Justice.

In this case dealing with an issue of apparent first impression in New York, the defendants move to suppress property seized in an apartment at 239 Pearl Street in Rochester, New York, on September 21, 1982, pursuant to a search warrant. The primary ground advanced by the defendants on this motion is that there was insufficient information presented to the issuing magistrate to establish probable cause for the search warrant.

The defendants have been separately indicted for Criminal Possession of a Weapon in the Third Degree, Criminal Possession of Marihuana in the Third Degree and Criminal Possession of a Controlled Substance in the Seventh Degree. Defendant Simon is also indicted for Criminal Possession of a Weapon in the First Degree. The charges arose from the seizure by police of dynamite, Deta Gel (an explosive gel), blasting caps, marihuana and diazepam from the Pearl Street apartment rented and occupied by defendant Schofield.

Brighton Police Officer Richard McCory applied for a warrant to search the apartment after being informed by a John Pealo that dynamite was being stored there. Attached to McCory's application is a one-page supporting statement by Pealo stating that Schofield had told Pealo that Simon "had two cases of dynamite in her apartment on Pearl St."

At the outset, it should be noted that there is doubt as to Simon's standing to controvert the search warrant. In People v. Ponder, 54 N.Y.2d 160, 445 N.Y.S.2d 57, 429 N.E.2d 735, the Court of Appeals eliminated the "automatic standing" rule. Thus, a person may only challenge a search if he can demonstrate a reasonable expectation of privacy in the premises searched (People v. Ponder, supra, p. 166, 445 N.Y.S.2d 57, 429 N.E.2d 735). As an occasional visitor of Schofield, Simon may not be able to make such a showing (see People v. VanBuren, 87 A.D.2d 900, 901, 449 N.Y.S.2d 366; People v. Sumlin, 105 Misc.2d 134, 138, 431 N.Y.S.2d 967). However, at argument, the District Attorney advised the Court of his desire to avoid now raising the standing issue and, therefore, that will await resolution for another time.

The defendants contend that the information in the search warrant application was insufficient to establish probable cause. Specifically, the defendants argue that neither Pealo nor the police officer had personal knowledge that dynamite was located in Schofield's apartment and that Pealo's affirmation was based on nothing more than a casual conversation with Schofield whose statement regarding the dynamite was totally unsubstantiated.

Hearsay information may be used to establish probable cause where there is a substantial basis for crediting it (Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; People v. Hanlon, 36 N.Y.2d 549, 556, 557, 369 N.Y.S.2d 677, 330 N.E.2d 631). However, where a police officer relies on hearsay information in an affidavit in support of a warrant, the affidavit must meet the two-pronged test laid down in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and reaffirmed in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (see also, People v. Bartolomeo, 53 N.Y.2d 225, 233, 440 N.Y.S.2d 894, 423 N.E.2d 371). That test requires that the affidavit show "(1) whether the informant is in fact reliable, and (2) whether the underlying circumstances as to how the informant came by his information demonstrates sufficient probability of credibility to allow the search of the premises or person in question" (People v. Hendricks, 25 N.Y.2d 129, 133, 303 N.Y.S.2d 33, 250 N.E.2d 323; see also, People v. Elwell, 50 N.Y.2d 231, 236, 428 N.Y.S.2d 655, 406 N.E.2d 471; People v. McCracken, 91 A.D.2d 339, 340-341, 459 N.Y.S.2d 902).

Where the information is supplied to the police by an identified citizen rather than by an unidentified police informant, the first, or veracity, prong of the Aguilar-Spinelli test does not apply (People v. Hicks, 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227). Accordingly, the focus of this analysis is whether Pealo's statement was sufficient to satisfy the second or "basis of knowledge" test.

The question of whether probable cause can be established when an informant's report to the police is itself based on what he has been told by a third party has apparently not as yet been addressed by New York courts. However, federal courts which have considered the question have rejected the argument that an application for a warrant containing double hearsay is insufficient to supply probable cause (United States v. Jenkins, 525 F.2d 819, 823 [6th Cir.1975]; United States v. Fiorella, 468 F.2d 688, 691 [2d Cir.1972]; United States v. Smith, 462 F.2d 456, 459 [8th Cir.1972] ). They have held that the same rules which govern the evaluation of information supplied by a primary source apply equally to the evaluation of information from a secondary or tertiary source (United States v. Button, 653 F.2d 319, 324 n. 6 [8th Cir.1981]; see generally, 1 LaFave, Search and Seizure, § 3.3(d), pp. 542-543; 1 Ringel, Searches and Seizures, Arrests and Confessions, 2d ed. § 4.3(c)(2) pp. 4-27).

Ultimately, the crucial inquiry is whether the information furnished by the informant, taken as a whole in light of the underlying circumstances, can be said to be reliable (see United States v. Fiorella, supra, p. 691; United States v. Smith, supra, p. 460).

Because it was Schofield's apartment in which the dynamite was located, her statement to Pealo that Simon had dynamite in the apartment was a declaration against penal interest; she was thereby subject to a charge of Criminal Possession of a Weapon for which, as it happened, she was indicted (Penal Law, sec. 265.02, subdiv. 2). This satisfies the first, or veracity, prong of the Aguilar-Spinelli test (see United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723; People v. Wright, 37 N.Y.2d 88, 90-91, 371 N.Y.S.2d 460, 332 N.E.2d 331; United States v. Gavic, 520 F.2d 1346, 1350-1351 [8th Cir.1975] ). Generally, one element required for the admission of a declaration against penal interest is the declarant's awareness that his statement was adverse to his penal interest (People v. Maerling, 46 N.Y.2d 289, 298, 413 N.Y.S.2d 316, 385 N.E.2d 1245; People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612; People v. Egan, 78 A.D.2d 34, 36, 434 N.Y.S.2d 55). This element is meant to insure the circumstantial probability of trustworthiness of the declaration (Richardson, Evidence, [10th ed.] § 263; see also, People v. Schmotzer, 87 A.D.2d 792, 794-795, 449 N.Y.S.2d 717 [Silverman, J., concurring] ). In this case there has been no showing that Schofield was unaware that possession of dynamite constituted a criminal offense so as to undermine the apparent trustworthiness of her declaration. Such awareness may be inferred from the illegality of its unauthorized possession and the issuing magistrate was justified in so concluding.

Although there is no explicit indication in the warrant application as to how Schofield knew her information was accurate, this is of no moment. Belief based upon personal observation is sufficient. No one expects the narcotics informant to first verify by test that the substances which are the subject of his information are actually narcotics. A reasonable basis for his belief is adequate. While a magistrate must be informed of some of the underlying circumstances which support the conclusion that an informant's information is reliable (People v. Elwell, supra, 50 N.Y.2d p. 236, 428 N.Y.S.2d 655, 406 N.E.2d 471; People v. Wirchansky, 41 N.Y.2d 130, 391 N.Y.S.2d 70, 359 N.E.2d 666; People v. McCracken, supra, 91 A.D.2d p. 341, 459 N.Y.S.2d 902), courts should not invalidate warrants by interpreting their applications in a hypertechnical manner (see United States v. Ventresca, 380 U.S. 102, 108, 85...