| People v Monroe |
| 2011 NY Slip Op 02262 [82 AD3d 1674] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChristopherMonroe, Also Known as Luv, Appellant. |
—[*1] Richard M. Healy, District Attorney, Lyons (Melvin Bressler of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), renderedOctober 5, 2009. The judgment convicted defendant, upon a jury verdict, of criminal sale of acontrolled substance in the third degree (two counts) and criminal possession of a controlledsubstance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the restitution ordered and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts each of criminal sale of a controlled substance in the third degree (Penal Law §220.39 [1]) and criminal possession of a controlled substance in the third degree (§ 220.16[1]). Defendant contends that his arrest was not supported by probable cause and that CountyCourt therefore erred in refusing to suppress statements made by defendant to the police, as wellas physical evidence seized incident to his arrest. We reject that contention. Where hearsayinformation forms at least in part the basis for probable cause, the information must satisfy " 'thetwo-part Aguilar-Spinelli test requiring a showing that the informant is reliable and has abasis of knowledge for the information imparted' " (People v Flowers, 59 AD3d 1141, 1142 [2009]). Here, the policehad probable cause to arrest defendant based on information imparted to the police by theconfidential informant who purchased cocaine from defendant. With respect to the reliabilityrequirement, the police verified the accuracy of the information provided by the confidentialinformant by monitoring the drug transactions (see People v Glover, 23 AD3d 688, 689 [2005], lv denied 6NY3d 776 [2006]) and, with respect to the basis of knowledge requirement, the Peopleestablished that the confidential informant participated in the drug transactions involvingdefendant (see People v Ketcham, 93 NY2d 416, 420 [1999]).
We agree with defendant, however, that the court erred in ordering defendant to payrestitution "inasmuch as the recipient of the restitution[, Wayne County,] was not a 'victim' asdefined by Penal Law § 60.27 (4) (b)" (People v Glasgow, 12 AD3d 1172, 1172-1173 [2004], lv denied4 NY3d 763 [2005]; see [*2]People v Watson, 197AD2d 880, 880-881 [1993]). We therefore modify the judgment accordingly. "Although adefendant may agree to pay [restitution] as part of a plea agreement" (People v Pelkey, 63 AD3d 1188,1191 [2009], lv denied 13 NY3d 748 [2009]; see CPL 570.56), there is noevidence in this case that defendant did so. Finally, the sentence imposing concurrent terms ofincarceration to be followed by a period of postrelease supervision is not unduly harsh or severe.Present—Centra, J.P., Fahey, Carni, Green and Gorski, JJ.