| People v Brooks |
| 2017 NY Slip Op 05880 [152 AD3d 1084] |
[*1]
| 1 The People of the State of New York, Respondent, v Breon J.Brooks, Appellant. |
Robert R. LaLonde, Ithaca, for appellant.
Matthew Van Houten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Tompkins County (Rowley,J.), rendered March 18, 2015, convicting defendant upon his plea of guilty of the crimes ofcriminal possession of a weapon in the second degree and criminal possession of a weapon in thethird degree.
In February 2014, the City of Ithaca Police Department identified defendant as a suspect in aseries of burglaries and obtained a warrant to place a tracking device on his vehicle. Aftertracking defendant's movements for several days, the police applied for a second warrant tosearch defendant's person, residence and vehicle. After the second warrant was issued, the policeorally requested that it be amended to include a firearm in the list of items to be seized and tochange the number of the apartment to be searched. Upon executing the second warrant, policelocated a loaded revolver and a box of ammunition in the glove compartment of defendant'svehicle. As a result, defendant was charged by indictment with criminal possession of a weaponin the second degree and criminal possession of a weapon in the third degree. Defendant movedto suppress the evidence of the weapon, arguing that there was an insufficient basis for issuingthe warrants and that the second warrant was unlawfully amended. County Court denied themotion and, thereafter, defendant pleaded guilty to both counts in the indictment and wassentenced, as a second violent felony offender, to seven years in prison with five years ofpostrelease supervision on the conviction of criminal possession of a weapon in the seconddegree and to a concurrent prison term of 2 to 4 years on the conviction of criminal possession ofa weapon in the third degree. [*2]Defendant now appeals, and weaffirm.
Defendant's contention that County Court erred in denying his suppression motion is withoutmerit. Initially, we note that defendant's argument challenging the reliability of the informationprovided by identified citizen informants is unpreserved (see People v Baptista, 130 AD3d 1541, 1543 [2015], lvdenied 27 NY3d 991 [2016]), and, as his omnibus motion failed to dispute any of the factsalleged by police in the warrant applications, County Court properly determined that aMapp hearing was not necessary (see People v Battle, 109 AD3d 1155, 1157-1158 [2013], lvdenied 22 NY3d 1038 [2013]; People v Vanness, 106 AD3d 1265, 1265 [2013], lv denied22 NY3d 1044 [2013]). Additionally, we agree with County Court that the challenged searchwarrants were supported by probable cause. A search warrant approved by a magistrate ispresumed valid and will be upheld if the warrant application demonstrates that there was"sufficient information to support a reasonable belief that evidence of a crime may be found in acertain place" (People v Pinkney, 90AD3d 1313, 1315 [2011] [internal quotation marks and citation omitted]; see People v Church, 31 AD3d892, 894 [2006], lv denied 7 NY3d 866 [2006]).
In the first warrant application, the police sought to install an electronic tracking device ondefendant's green 1998 Honda Civic sedan for the purpose of tracking his movements in relationto a string of home burglaries. The sworn written application provided that boot prints matchinga type worn by defendant were found at multiple homes that had been burglarized. A suspectmatching defendant's physical description was also captured on video attempting to use an ATMcard that was taken from one of the burglarized homes. Additionally, two witnesses saw asuspect matching defendant's physical description leave the premises of a burglarized home, anda police officer, that same day, saw defendant wearing clothing that matched their description ofthe suspect's clothing. Finally, a third witness told police that she saw a green "older four doorHonda" in the area shortly after another burglary was reported.
As for the second warrant, the police sought to search defendant's person, residence andvehicle for evidence of property stolen in the course of these burglaries, including a laptop,jewelry and cash. Since the installation of the tracking device pursuant to the first warrant, thepolice monitored the movement of defendant's vehicle and placed it in the vicinity of a burglary afew hours before the crime was reported. Boot prints matching the type worn by defendant werealso found at this location. Additionally, the police tracked defendant to the local mall, wherethey saw him conversing with a pawn shop employee. After defendant left, police interviewedthe employee and discovered that defendant sold the shop, among other things, an inscribed ringthat had been taken during one of the reported burglaries.
This information was sufficient to support the reasonable belief that defendant wasperpetrating these crimes and that evidence of the burglaries would be located on his person, inhis vehicle and/or in his apartment (seePeople v Anderson, 149 AD3d 1407, 1408 [2017]; People v Pasco, 134 AD3d 1257, 1258 [2015]). Furthermore, evenif defendant is correct in contending that the failure to record the oral request by the police tochange the second warrant violated CPL 690.36, this error does not require suppression of thephysical evidence seized as a result of the second warrant. The misstatement of the apartmentnumber on the second warrant "did not impair the ability of the police to readily ascertain andidentify the target premises with reasonable and minimal effort" (People v Mitchell, 57 AD3d 1232,1233 [2008], lv denied 12 NY3d 760 [2009]; see People v Salgado, 57 NY2d662, 663 [1982]; People v Gramson,50 AD3d 294, 295 [2008], lv denied 11 NY3d 832 [2008]). Regardless, anyinvalidation of the second warrant caused by the misidentification of defendant's apartmentwould be partial and [*3]would not require suppression of theweapon that was located in defendant's vehicle (see People v Hansen, 38 NY2d 17, 21[1975]; People v Allen, 101 AD3d1491, 1491-1492 [2012], lv denied 21 NY3d 1013 [2013]). Further, the secondwarrant, absent any amendment, allowed for a search of defendant's entire vehicle.[FN*] That warrant was issued for thepurpose of searching for stolen goods, and therefore the police were authorized to search anycompartment of the vehicle that could have contained such items, which included defendant'sglove compartment (see People v Brown, 96 NY2d 80, 90 [2001]). Regardless of whetherthe firearm was specified in the second warrant prior to the amendment, the police were entitledto "seize incriminating evidence in plain view if they had the right to be where they were whenthey saw it" (People v Velasquez,110 AD3d 835, 835 [2013], quoting People v Brown, 96 NY2d at 88). In thisinstance, the incriminating character of the firearm would have been immediately apparent to thepolice, who knew that defendant was on parole at the time (see People v Velasquez, 110AD3d at 836; People v Woods, 303 AD2d 1031, 1031-1032 [2003]; 9 NYCRR 8003.2[i]). Thus, there is a high degree of probability that the firearm would have inevitably beendiscovered and properly seized in executing the second search warrant, regardless of theamendment (see People v Ladd, 16AD3d 972, 973 [2005], lv denied 5 NY3d 764 [2005]; People v Speicher,244 AD2d 833, 834-835 [1997]). Accordingly, any error based on a failure to record the oralrequest to amend the second warrant does not require suppression (see People v Sherwood, 79 AD3d1286, 1288 [2010]; People v Dominique, 229 AD2d 719, 719 [1996], affd 90NY2d 880 [1997]). Defendant's remaining contentions have been reviewed and are withoutmerit.
Garry, Lynch, Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Defendant does not contend thatthe scope of the warrant was overbroad.