People v. Zirpola

• Decision Date: 04 April 2019
• Docket Number: 108779
• Citation: 171 A.D.3d 1245,97 N.Y.S.3d 355
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Frederick ZIRPOLA, Appellant.

171 A.D.3d 1245
97 N.Y.S.3d 355

The PEOPLE of the State of New York, Respondent,
v.
Frederick ZIRPOLA, Appellant.

108779

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 14, 2019
Decided and Entered: April 4, 2019

Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Noel Mendez of counsel), for respondent.

Before: Clark, J.P., Mulvey, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

171 A.D.3d 1246

In March 2015, a known confidential informant (hereinafter the CI) working with the City of Albany Police Department informed the police that defendant wanted to sell a gun. The police and the CI arranged a controlled buy, and, on the way to the sale location, defendant was arrested. Defendant was thereafter charged by indictment with criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. Following a suppression hearing, County Court, among other things, denied defendant's motion to suppress physical evidence. Subsequently, defendant pleaded guilty as charged, specifically retaining his right to appeal and to challenge the denial of his suppression motion. County Court sentenced defendant, as a violent felony offender with a prior nonviolent felony, to a prison term of seven years, to be followed by five years of postrelease supervision, on his conviction of criminal possession of a weapon in the second degree, as well as a lesser concurrent prison term on the remaining conviction. Defendant appeals.

97 N.Y.S.3d 357

Initially, defendant contends that the indictment should be dismissed because his due process rights were violated. Because that issue was not raised before County Court, however, it is not preserved for our review (see CPL 470.05[2] ; People v. Boland , 89 A.D.3d 1144, 1146, 931 N.Y.S.2d 791 [2011], lv denied 18 N.Y.3d 955, 944 N.Y.S.2d 484, 967 N.E.2d 709 [2012] ). Next, defendant contends that his warrantless arrest was not supported by probable cause. We disagree. At the suppression hearing, Scott Gavigan, a detective with the City of Albany Police Department, testified that he had known the CI for over 10 years, during which the CI had provided information that led to arrests and convictions on at least 50 occasions. Gavigan further testified that, in March 2015, the CI informed him that an individual at his house was looking to sell "a [9] millimeter semi-automatic [g]lock with a laser sight for $ 600" or drugs. Gavigan instructed the CI to tell the seller that there was a prospective buyer who would be waiting in the rear of a nearby CVS with $ 600 to buy the gun. The CI described the seller as an older white male and gave a description of what he was wearing, including a white fishing hat. The CI also informed Gavigan that he would walk with the seller to the CVS so that Gavigan would know exactly who he was. Gavigan explained that he went to the area of the CVS along with other police officers and, under their observation, the CI

171 A.D.3d 1247

went into his house and, approximately 15 minutes later, the CI and defendant, who matched the description of the seller, left the CI's house and walked down the street towards the CVS. Gavigan then instructed other police officers to arrest defendant. Gavigan testified that the arrest occurred 30 minutes to an hour after the CI's initial call. After the arrest, defendant was searched and, in the waistband of his pants, he had, among other things, a 9 millimeter gun that matched the CI's description, as well as ammunition for that gun.

Probable cause "exists when an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed" ( People v. Sudler , 75 A.D.3d 901, 902, 906 N.Y.S.2d 373 [2010] [internal quotation marks and citations omitted], lv denied 15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327 [2010] ; see CPL 140.10[1][b] ). "[P]robable cause for a warrantless arrest may be supplied, in whole or part, through hearsay...