People v. Wright

• Citation: 37 N.Y.2d 88,332 N.E.2d 331,371 N.Y.S.2d 460
• Parties: , 332 N.E.2d 331 The PEOPLE of the State of New York, Respondent, v. Warren WRIGHT, Appellant.
• Decision Date: 12 June 1975
• Court: New York Court of Appeals

Page 460

371 N.Y.S.2d 460

37 N.Y.2d 88, 332 N.E.2d 331

The PEOPLE of the State of New York, Respondent, v. Warren WRIGHT, Appellant.

Court of Appeals of New York.

June 12, 1975.

Carolyn Wheat and William E. Hellerstein, New York City, for appellant.

Eugene Gold, Dist. Atty. (Barbara L. Linzer, Brooklyn, of counsel), for respondent.

BREITEL, Chief Judge.

Defendant was convicted after a jury trial for criminal possession of a weapon, for which he was sentenced to four years' imprisonment. Police officers, acting under a warrant to search for narcotics or weapons, discovered a loaded pistol in his apartment bedroom. Defendant's motions to suppress the pistol and his subsequent admission of ownership, on grounds of a defective warrant, were denied after pretrial hearing. The Appellate Division unanimously affirmed his conviction, 45 A.D.2d 821, 357 N.Y.S.2d 1017. Defendant appeals.

The order of the Appellate Division should be reversed, appellant's motions to suppress granted, his conviction vacated, and the indictment dismissed. Probable cause for the search was lacking in the affidavit. Appellant's observed participation in a single, smallscale narcotics transaction at an unspecified location was insufficie to establish the likelihood that narcotics were kept on his premises. Moreover, the affidavit failed to give the underlying basis for an informant's assertion that appellant had received a stolen pistol. The search was therefore illegal, and the weapon seized, as well as defendant's admission of ownership, should have been suppressed.

The warrant to search defendant's apartment for narcotics or weapons was issued by a Judge of the Criminal Court on April 13, 1971, upon an application by Patrolman Robert Hantz. The underlying affidavit sought to establish probable cause by averring the following investigative leads: On April 5, 1971, eight days prior, Hantz and other police officers had seen appellant pass a glassine envelope to one Mark Antomez, a police officer then under investigation for robbing narcotics dealers and users. A 'reliable informant' had told the police that Antomez and one Reginald James at some unspecified times had twice 'held up' two narcotics dealers. Officer Hantz located James, who declared that he and Antomez had robbed these dealers of a quantity of narcotics as well as two pistols. James said that Antomez had kept one pistol for himself, and had given the other to appellant Wright. The affidavit did not indicate how James knew Antomez had given Wright the pistol, or when and where this had occurred. James also admitted a third robbery by him and Antomez, in October, 1970, which was independently verified. Notably, the affidavit shows no particular sustained relationship between Wright and the 'robbers' or any of the illegal vocations they pursued.

The warrant was executed on April 14, 1971. Defendant's apartment was searched in his absence, and a loaded pistol discovered in his bedroom. No narcotics were found. When defendant appeared at the precinct approximately 10 to 15 minutes after the search, he identified the weapon as his own.

Perhaps the most egregious defect in the affidavit is its omission of the underlying basis for James' statement that Wright had received the pistol from Antomez. James' information to the affiant was hearsay, not the affiant's personal knowledge, and therefore fore cognizable only upon a showing of both the informant's veracity and a basis for his statements (see People v. Hanlon, 36 N.Y.2d 549, 369 N.Y.S.2d 677, 330 N.E.2d 631; People v. Wheatman, 29 N.Y.2d 337, 344, 327 N.Y.S.2d 643, 646, 277 N.E.2d 662, 664;31 N.Y.2d 12, 334 N.Y.S.2d 842, 286 N.E.2d 234, Cert. den. sub nom. Marcus v. New York, 409 U.S. 1027, 93 S.Ct. 460, 34 L.Ed.2d 321; People v. Hendricks, 25 N.Y.2d 129, 133, 303 N.Y.S.2d 33, 36, 250 N.E.2d 323, 325; United States v. Harris, 403 U.S. 573, 577 Et seq., 91 S.Ct. 2075, 29 L.Ed.2d 723...