| People v Santos |
| 2014 NY Slip Op 08167 [122 AD3d 1394] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGeorge Santos, Appellant. (Appeal No. 1.) |
John J. Raspante, Utica, for defendant-appellant.
Leanne K. Moser, District Attorney, Lowville, D.J. & J.A. Cirando, Esqs.,Syracuse (John A. Cirando of counsel), for respondent.
Appeal from a judgment of the Lewis County Court (Charles C. Merrell, J.),rendered October 16, 2009. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a controlled substance in the third degree and criminally usingdrug paraphernalia in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of criminal possession of a controlled substance (CPCS) in thethird degree (Penal Law § 220.16 [1]) and criminally using drugparaphernalia in the second degree (§ 220.50 [3]). In appeal No. 2,defendant appeals from a judgment convicting him upon his plea of guilty of CPCS inthe fourth degree (§ 220.09 [1]). In appeal No. 3, defendant appeals from ajudgment convicting him upon his plea of guilty of two counts of criminal sale of acontrolled substance in the third degree (§ 220.39 [1]). All of the pleas wereentered during one plea proceeding, following the denial of defendant's suppressionmotion concerning all of the charges. At the outset, we reject the People's contention thatdefendant's waiver of the right to appeal was valid and thus encompasses his challenge ineach appeal to County Court's suppression ruling. "[W]e are unable to determine basedon the record before us whether the court ensured 'that the defendant understood that theright to appeal is separate and distinct from those rights automatically forfeited upon aplea of guilty' " (Peoplev Johnson, 109 AD3d 1191, 1191 [2013], lv denied 22 NY3d 997[2013], quoting People vLopez, 6 NY3d 248, 256 [2006]). Nevertheless, we conclude that the courtproperly denied defendant's motion.
Defendant contends that he was entitled to suppression because there was aninsufficient basis for issuance of the warrant to search his residence. Contrary todefendant's contention, however, the information in the search warrant application "wasindicative of an ongoing drug operation at defendant's residence, and thus the application'established probable cause to believe that a search of defendant's residence would resultin evidence of drug activity' " (People v Casolari, 9 AD3d 894, 895 [2004], lvdenied 3 NY3d 672 [2004]; see People v Pitcher, 1 AD3d 1051, 1052 [2003]).Defendant failed to preserve for our review his contention that the search warrant wasoverly broad because he "failed to raise that specific contention in his motion papers or atthe [suppression] hearing" (People v Price, 112 AD3d 1345, 1346 [2013]; see generally People v Maxis,50 AD3d 922, 923 [2008]; People v Caballero, 23 AD3d 1031, 1032 [2005], lvdenied 6 NY3d 846 [2006]). We decline to exercise our power to review it as amatter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Contrary to defendant's further contention, the police had probable cause for hiswarrantless arrest, which occurred prior to the execution of the search warrant. We thusreject defendant's contention that he was entitled to suppression of the evidence derivedfrom the [*2]allegedly improper warrantless arrest,including, among other things, cell phones and cash from his person. The record of thesuppression hearing establishes that an identified citizen told the police that he purchasedheroin from defendant once on the date of the arrest and once on the day before thearrest, and another identified citizen told the police that she witnessed both of thosetransactions. "It is well settled that 'information provided by an identified citizenaccusing another individual of the commission of a specific crime is sufficient to providethe police with probable cause to arrest' " (People v McClain, 67 AD3d 1480, 1480 [2009], lvdenied 14 NY3d 803 [2010]; see People v Brito, 59 AD3d 1000, 1000 [2009], lvdenied 12 NY3d 814 [2009]). Present—Smith, J.P., Peradotto, Valentino,Whalen and DeJoseph, JJ.