| People v Baptista |
| 2015 NY Slip Op 06064 [130 AD3d 1541] |
| July 10, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAndre Baptista, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered April 11, 2012. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a controlled substance in the third degree and criminalpossession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty,of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]) and criminal possession of a controlled substance in thefourth degree (§ 220.09 [1]), defendant contends that the search warrant inquestion was not issued upon probable cause and that Supreme Court therefore erred inrefusing to suppress physical evidence seized during the execution of the search warrant.We reject that contention.
"It is well settled that probable cause may be supplied, in whole or in part, [by]hearsay information, provided [that] it satisfies the two-part Aguilar-Spinelli testrequiring a showing that the informant is reliable and has a basis of knowledge for theinformation imparted" (People vFlowers, 59 AD3d 1141, 1142 [2009] [internal quotation marks omitted]). Here,defendant does not challenge the confidential informant's hearsay information other thanto say that the informant's reliability or basis of knowledge was not established. We agreewith the People that the confidential informant's reliability and the basis of hisknowledge was established by evidence of the confidential informant's participation inthe four controlled buys from defendant and the confidential informant's priorparticipation in over 20 other investigations (see People v Myhand, 120 AD3d 970, 973-975 [2014],lv denied 25 NY3d 952 [2015]; People v Monroe, 82 AD3d 1674, 1675 [2011], lvdenied 17 NY3d 808 [2011]; Flowers, 59 AD3d at 1142-1143; People vLee, 303 AD2d 839, 840 [2003], lv denied 100 NY2d 622 [2003]). Wetherefore conclude that the People satisfied both prongs of the Aguilar-Spinellitest.
Defendant's contention that he was never identified in the warrant application is notpreserved for our review (seegenerally People v Fuentes, 52 AD3d 1297, 1298 [2008], lv denied 11NY3d 736 [2008]), and we decline to exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Contrary to the contention of defendant, the confidential informant's single photoidentification of defendant was not improper and did not taint the entire warrantapplication. The confidential informant's photo identification was not offered as "proofsufficient to warrant a conviction beyond a reasonable doubt," but it was instead usedsimply to determine whether there was "information sufficient to support a reasonablebelief that an offense [had] been or [was] being committed or that evidence of a crime[could] be found in a certain place" (People v Bigelow, 66 NY2d 417, 423[1985]). Moreover, "[t]he validity of the warrant is determined based on [*2]the information available at the time it was issued"(People v O'Connor, 242 AD2d 908, 910 [1997], lv denied 91 NY2d 895[1998]; see People v Nieves, 36 NY2d 396, 402 [1975]), and we conclude thatthe single photo identification was acceptable within the context of the warrantapplication as a whole. The confidential informant was not shown the photograph ofdefendant until the confidential informant had already completed two controlled buysand had therefore seen the seller, i.e., defendant, twice. Moreover, the police did notapply for the warrant immediately following the single photo identification. Instead, twomore controlled buys followed approximately six weeks after the confidential informant'spositive identification of defendant, and the confidential informant identified the seller asdefendant in both subsequent buys. Thus, the confidential informant "had sufficientopportunity to observe defendant . . . [and] to provide an independentidentification" (People v Kirby, 280 AD2d 775, 778 [2001], lv denied 96NY2d 920 [2001]; see People vKairis, 37 AD3d 1070, 1071 [2007], lv denied 9 NY3d 846 [2007]), and"[a]ny taint . . . was sufficiently attenuated by the passage of time betweenthe two identification[s]" (People v Davis, 294 AD2d 872, 873 [2002]). Anyimpropriety regarding the use of the single photo identification was thereforevitiated.
Defendant's contention that the surveillance team did not observe the third controlledbuy that took place after defendant was seen leaving the apartment in the first week ofOctober 2011 is unpreserved for our review inasmuch as it was not raised in any ofdefendant's motions or in appearances before the court (see generally People v Santos,122 AD3d 1394, 1395 [2014]). In addition, defendant's further contention that thehearsay statement of an unidentified female failed the Aguilar-Spinelli test is alsounpreserved for our review inasmuch as it is raised for the first time on appeal (see People v Stevens, 87 AD3d754, 756 [2011], lv denied 18 NY3d 861 [2011]). Finally, defendant'scontention that the information upon which the warrant was based was stale is alsounpreserved for our review (seePeople v Long, 100 AD3d 1343, 1346 [2012], lv denied 20 NY3d 1063[2013]). We decline to exercise our power to review any of those unpreservedcontentions as a matter of discretion in the interest of justice (see CPL 470.15 [3][c]). We have considered defendant's remaining contentions and conclude that they arewithout merit. Present—Centra, J.P., Peradotto, Lindley, Valentino and DeJoseph,JJ.