People v. Thomas

• Decision Date: 20 November 1980
• Citation: 78 A.D.2d 940,433 N.Y.S.2d 264
• Parties: The PEOPLE of the State of New York, Respondent, v. Bobby THOMAS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 264

433 N.Y.S.2d 264

78 A.D.2d 940

The PEOPLE of the State of New York, Respondent, v. Bobby THOMAS, Appellant.

Supreme Court, Appellate Division, Third Department.

Nov. 20, 1980.

David Purcell, Albany, for appellant.

Sol Greenberg, Albany (F. Patrick Jeffers, Albany, of counsel), for respondent, Albany County Dist. Atty.

Before MAHONEY, P. J., and GREENBLOTT, SWEENEY, KANE and MAIN, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered December 27, 1979, convicting defendant upon his plea of guilty of two counts of criminal sale of a controlled substance in the third degree.

Defendant Bobby Thomas entered a plea of guilty to two counts of criminal sale of a controlled substance in the third degree on December 6, 1979. At his sentencing on December 27, defendant's motion to withdraw his guilty plea was denied and he was sentenced to an indeterminate sentence of four years to life. On this appeal he challenges the denial of his pretrial motions to suppress certain real evidence seized from his apartment and the denial of his motion to withdraw his plea of guilty.

We address ourselves first to whether the evidence seized from his apartment should have been suppressed as the fruit of an illegal search. The search warrant in question was issued by Judge Joseph Harris of the Albany County Court on July 9, 1979 upon the application and affidavit of a police officer. The underlying affidavit sought to establish probable cause for the search warrant through the hearsay statements of two informers and an investigation by the Albany Police Department.

Informant No. 1 made two controlled and monitored "buys" of heroin from the defendant on June 12, 1979 and June 28, 1979 at defendant's apartment on 2 Warren Street, Albany, New York. The Narcotics Enforcement Unit of the Albany Police supervised the "buys" and during each buy, the defendant sold informant No. 1 a glassine bag containing heroin. Tape recordings were secretly made of each buy. Informant No. 2 had been involved in a supervised "buy" in a parallel investigation. Based upon these investigative leads provided by the informants and an independent investigation by the Albany Police, a warrant to search defendant's apartment was issued and 50 bags of heroin were discovered.

It is well settled that an application for a search warrant must establish that there is probable cause to believe that the desired evidence is located on the property to which entry is sought (Zurcher v. Stanford Daily, 436 U.S. 547, 554, 98 S.Ct. 1970, 1975, 56 L.Ed.2d 525; People v. Wolzer, 41 A.D.2d 679, 681, 340 N.Y.S.2d 953). When such probable cause is predicated on the hearsay statements of an informer, certain precautions have evolved to safeguard the public's expectations of privacy (People v. Elwell, 50 N.Y.2d 231, 236-237, 428 N.Y.S.2d 655, 406 N.E.2d 471). The seminal case on this subject, Aguilar v. Texas (378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723), requires that a two-pronged test be applied. First, the informer's veracity must be established and second, there must be a reliable factual basis for the informer's information and conclusions (id., at p. 114, 84 S.Ct. at pp. 1513-1514). This two-prong standard of scrutiny minimizes the possibility of a needless intrusion into a citizen's liberty without first securing dependable information upon which to conduct a search.

Both of the criteria in the two-prong Aguilar test were satisfied in the issuance of the search warrant in the instant case. Case law has made clear that "(r)eliability of the informant as distinct from his information can be established either by the arresting, or warrant-seeking, officer attesting to past instances of reliability or by the personal observation by the police of sufficient details corroborative of the informant's data to indicate that he knew whereof he spoke" (People v. Elwell, 50 N.Y.2d 231, 237, 428 N.Y.S.2d 655, 406 N.E.2d 471). Although there were no direct attestations as to the reliability or veracity of the informants by the warrant-seeking officer in the instant case, we are of the view that there was ample corroboration of...