| People v Marshall |
| 2008 NY Slip Op 09865 [57 AD3d 1163] |
| December 18, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Eddie Marshall,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered July 21, 2006 inAlbany County, upon a verdict convicting defendant of two counts of the crime of criminal sale of acontrolled substance in the third degree.
Defendant was indicted and charged with criminal sale of a controlled substance in the third degree(two counts), criminally using drug paraphernalia in the second degree, and unlawful possession ofmarihuana[FN1]in connection with two "controlled buys" in the City of Albany. Following a jury trial, defendant wasconvicted of criminal sale of a controlled substance in the third degree (two counts), acquitted ofcriminally using drug paraphernalia in the second degree and sentenced as a second felony offender toan aggregate prison term of 12 years with three years of postrelease supervision. Defendant nowappeals.
The record evidence shows that, on June 9 and 21, 2005, a confidential informant (hereinafter CI)participated in two controlled buys at the home of Gina Thomas in the City of Albany. In bothinstances, the CI was wearing a concealed device which transmitted audio while [*2]the controlled buy was in progress, enabling the police to hear and recordit. Police officers listened to the audio transmission and observed the locale as the controlled buysoccurred. Each time the CI arrived at Thomas's home, Thomas used the CI's cellular telephone to calldefendant's cellular telephone and order a bundle of heroin. Thereafter, while Thomas and the CIwaited for defendant to arrive, the CI gave Thomas $150 for the heroin and $20 for her participation inobtaining the heroin. On June 9 (as to count one), Thomas and the CI waited for defendant outsideThomas's home. Upon defendant's arrival, Thomas went to defendant's car, got in, leaned in towardsdefendant and got out again—all within approximately 30 seconds. Thomas then walked over tothe CI and handed him heroin. On July 21 (as to count two), the CI exited Thomas's home withThomas after defendant arrived. Thomas then got into defendant's car and the two drove off, returninga short time later, whereupon Thomas approached the CI and handed him heroin.
Turning first to defendant's suppression arguments, we initially find no error in the determination of County Court (Herrick, J.) that there was probable cause to support the issuance of the search warrant. "[A] searchwarrant may be validly based upon hearsay information found to be reliable . . . In thisregard, an affidavit by a police officer which is based upon the observations made by a fellow policeofficer when the two are engaged in a common investigation furnishes a reliable basis for the warrant"(People v Londono, 148 AD2d 753, 753 [1989] [citations omitted]; see People v Rivenburgh, 1 AD3d 696,699 [2003], lv denied 1 NY3d 579 [2003]; see generally People v Petralia, 62 NY2d47 [1984], cert denied 469 US 852 [1984]).
Here, probable cause to believe that defendant was involved in the sale of heroin was supported bythe information provided to City of Albany Police Detective John Monte (the detective in charge of thecontrolled buy operation) by the CI and by police officers directly involved in the controlled buys whohad personally observed and listened to the audio transmission of the transactions. Moreover,defendant failed to demonstrate that statements made by the police officers in support of the warrantapplication with regard to the exchange of heroin between defendant and Thomas[FN2]—in the absence of evidence that any police officers or the CI actually saw the allegedexchange—were "knowingly false or made in reckless disregard of the truth" (People vGriffin, 234 AD2d 718, 720 [1996], lv denied 89 NY2d 1036 [1997]; see People v Richardson, 28 AD3d1002, 1005 [2006], lv denied 7 NY3d 817 [2006]).
We also reject defendant's contention that Supreme Court should not have allowed into evidence records relatingto defendant's cell phone number. Although defendant's cell phone was suppressed by County Court, the CI's cell phone,together with the police call detail records, provided an independent source for the discovery ofdefendant's number (see People vRichardson, 9 AD3d 783, 788-789 [2004], lv denied 3 NY3d 680 [2004];People v Binns, 299 AD2d 651, 653 [2002], lv denied 99 NY2d 612 [2003]). Norwas defendant prejudiced by the People's premature subpoena regarding the cell phone records(see CPL 610.20 [2]; 610.25 [1]; People v Natal, 75 NY2d 379, 385 [1990],cert denied 498 US 862 [1990]).
However, we agree with defendant's contention that County Court erred in failing to suppress$160 of recorded "buy money" seized from his home on the basis that it was not [*3]included in the warrant or the warrant application. Warrants must statewith particularity the items that may be seized (see CPL 690.45 [4]; People v Brown,96 NY2d 80, 84 [2001]). The warrant here did not specifically list currency as a permissible item to beseized and we are unpersuaded by the People's argument that currency is included in the category of"documents . . . that prove . . . [p]ossession, [s]ale or [c]onspiracy to[p]ossess, [s]ell and [d]istribute [h]eroin."[FN3]Nevertheless, on this record, the error was harmless because "there is no significant probability that thejury would have acquitted the defendant had it not been for the error that occurred" (People vSmith, 2 NY3d 8, 12-13 [2004]; see People v Crimmins, 36 NY2d 230, 237-238[1975]).
Finally, defendant correctly asserts that he is entitled to a new suppression hearing with regard tothe $10 seized from him upon his arrest (representing documented buy money from the June 21, 2005controlled buy), as the People failed to turn over the property report relating to that money prior to thesuppression hearing. Even though the report was turned over to the defense prior to cross-examinationof its author at trial, defendant was completely deprived of any use of the report during the suppressionhearing (see People v Banch, 80 NY2d 610, 617-619 [1992]). Because the issue ofpreclusion of the $10 involves a Rosario violation, no harmless error analysis may be applied(see People v Banch, 80 NY2d at 615; People v Jones, 70 NY2d 547, 551-553[1987]). We note, however, that defendant is not entitled to an automatic reversal of the conviction(see People v Banch, 80 NY2d at 619). "Retrial is necessary only if, after [the newsuppression] hearing, the motion court concludes that defendant should prevail" (id.).Accordingly, the matter must be remitted to Supreme Court for a new suppression hearing with regardto the $10 seized from him upon his arrest. We withhold decision on the remaining issues raised onappeal pending the determination of the new suppression hearing.
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the decision is withheld, andmatter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.
Footnote 1: Supreme Court, upon defendant'smotion, dismissed this count following the close of the People's case.
Footnote 2: The warrant application states thatdefendant twice met with Thomas during a controlled buy and handed her "a quantity of glassineenvelopes, which contained [heroin]."
Footnote 3: Notably, a subsequent warrantissued in connection with a different prosecution of this defendant upon an application by the samedetective specifically authorized seizure of "United States Currency" in addition to "any documents inwritten or electronic form."