| People v Hanks |
| 2011 NY Slip Op 06768 [87 AD3d 1370] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Terris Hanks,Appellant. |
—[*1] Terris Hanks, defendant-appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Hannah Stith Long of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedMarch 18, 2008. The judgment convicted defendant, upon his plea of guilty, of conspiracy in thesecond degree, criminal possession of a controlled substance in the first degree, criminal sale of acontrolled substance in the second degree and criminal possession of a controlled substance inthe third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,inter alia, conspiracy in the second degree (Penal Law § 105.15) and criminal possessionof a controlled substance in the first degree (§ 220.21 [1]). Defendant contends in his mainand pro se supplemental briefs that County Court erred in denying that part of his omnibusmotion seeking to suppress evidence obtained through the execution of a series of eavesdroppingwarrants. Those warrants were issued during an investigation by the Attorney General'sStatewide Organized Crime Task Force (Task Force) into a narcotics distribution networkoperating in and around the City of Syracuse. We note at the outset that defendant challengesonly the first warrant and the fifth amended and extended warrant. We conclude that defendantdoes not have standing to challenge the first warrant inasmuch as it related solely to acoconspirator (see People v Fonville, 247 AD2d 115, 118 n [1998]).
Contrary to the contention of defendant in his main and pro se supplemental briefs, therecord supports the court's finding that the application for the fifth amended and extendedwarrant established that "normal investigative procedures ha[d] been tried and ha[d] failed, orreasonably appear[ed] to be unlikely to succeed if tried, or to be too dangerous to employ" (CPL700.15 [4]; see People v Rabb, 16NY3d 145, 152 [2011]). In an affidavit supporting that warrant application, a detectivedetailed the traditional investigative techniques, including but not limited to physical surveillanceof defendant and the use of confidential informants, that were utilized by Task Force membersbeginning four months prior to the issuance of the first warrant and continuing up to the date ofthe application for the fifth amended and extended warrant. The detective averred that, despitecontinued attempts, use of those traditional investigative [*2]techniques alone would not permit the Task Force to identify andsuccessfully prosecute all suppliers of controlled substances, a stated goal of the investigation (see People v Gray, 57 AD3d 1473,1474 [2008], lv denied 12 NY3d 854 [2009]; see generally Fonville, 247 AD2d at118-119). Further, because the detective provided details regarding the past and continuedattempts to use traditional investigative techniques in connection with the investigation ofdefendant and his coconspirators, "it cannot be said that the [Task Force] relied solely on pastinvestigations into [drug conspiracies] in general to support the[ ] assertion that normalinvestigative techniques would be generally unproductive in the [current] investigation"(Rabb, 16 NY3d at 154).
We reject the contention of defendant in his pro se supplemental brief that remedial action isrequired based on the failure of the court to "set forth on the record its findings of fact, itsconclusions of law and the reasons for its determination" with respect to defendant's pro sememorandum of law concerning alleged material misrepresentations of fact in the supportingaffidavits for the fifth amended and extended warrant application (CPL 710.60 [6]). Thearguments contained in that memorandum of law are so plainly inadequate that the court wasjustified in summarily rejecting them (see generally People v Jeffreys, 284 AD2d 550[2001], lv denied 99 NY2d 536 [2002]). Indeed, defendant's pro se memorandum of lawis unsworn and unsigned, and it therefore does not contain any "sworn allegations of fact"supporting his arguments therein (CPL 710.60 [1]). "Thus, defendant has failed to sustain hisburden of proof that the search warrant affiant[s here] knowingly or recklessly submitted falseinformation to the issuing [court] in order to obtain the [fifth amended and extended] searchwarrant" (see People v Cohen, 90 NY2d 632, 638 [1997]). Defendant failed to preservethe remaining contentions in his main and pro se supplemental briefs for our review (seeCPL 470.05 [2]), and we decline to exercise our power to review those contentions as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Present—Scudder,P.J., Smith, Lindley, Sconiers and Gorski, JJ.