| People v Bartholomew |
| 2015 NY Slip Op 07112 [132 AD3d 1279] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Appellant, vJoseph J. Bartholomew, Respondent. |
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forappellant.
Daniel J. Mastrella, Rochester, for defendant-respondent.
Appeal from an order of the Monroe County Court (Vincent M. Dinolfo, J.), datedJuly 7, 2014. The order granted the motion of defendant to suppress certain physicalevidence.
It is hereby ordered that the order so appealed from is unanimously affirmed and theindictment is dismissed.
Memorandum: In a prosecution arising from allegations that defendant possessedcertain stolen property, the People appeal pursuant to CPL 450.20 (8) from an ordergranting defendant's motion to suppress evidence seized pursuant to a search warrant andan amended search warrant issued by County Court (Piampiano, J.). Contrary to thePeople's contention, County Court (Dinolfo, J.) properly suppressed the evidence.
The People contend that the court erred in concluding that the search warrantapplications omitted material facts, and in further concluding that the issuing judgelacked probable cause to issue the initial warrant. We reject those contentions.Regardless of whether the sheriff's investigator who applied for the warrant omittedmaterial facts, the court properly concluded that the issuing judge lacked probable causeto issue the first warrant. It is well settled that a search warrant may be issued only upon ashowing of probable cause to believe that a crime has occurred, is occurring, or is aboutto occur (see generally People v Mercado, 68 NY2d 874, 877 [1986], certdenied 479 US 1095 [1987]), and there is sufficient evidence from which to form areasonable belief that evidence of the crime may be found inside the location sought tobe searched (see People v Bigelow, 66 NY2d 417, 423 [1985]). It is equally wellsettled that, under New York law, "[p]robable cause may be supplied, in whole or part,through hearsay information . . . New York's present law applies theAguilar-Spinelli rule for evaluating secondhand information and holds that ifprobable cause is based on hearsay statements, the police must establish that theinformant had some basis for the knowledge he [or she] transmitted to them and that he[or she] was reliable" (id.; see People v Griminger, 71 NY2d 635, 639[1988]). "Notably, where the information is based upon double hearsay, the foregoingrequirements must be met with respect to each individual providing information" (People v Mabeus, 63 AD3d1447, 1450 [2009]; see People v Ketcham, 93 NY2d 416, 421 [1999];People v Parris, 83 NY2d 342, 347-348 [1994]). Here, although an identifiedcitizen is presumed to be reliable and thus the information submitted in support of thewarrant application met that prong of the Aguilar-Spinelli test (see Parris,83 NY2d at 349-350; People vHolmes, 115 AD3d 1179, 1180-1181 [2014], lv denied 23 NY3d 1038[2014]), the application failed to establish the basis of knowledge of the ultimate sourceof the information in the warrant application. The additional "Statement of Facts"submitted in support of the warrant is unsigned, and there is no information indicatingwho prepared it. Indeed it is impossible to tell from reading it who provided theinformation contained in it, and thus it does not "permit a reasonable inference that it wasbased upon [the purported affiant]'s personal knowledge" (People v Jackson, 235AD2d 923, 924 [1997]). Inasmuch as the warrant was not issued on the requisiteshowing of probable cause, the court properly suppressed all evidence seized pursuant toit, including the [*2]observations of the deputies whoexecuted the warrant, regardless of their good faith in observing that information whileexecuting the initial invalid warrant (see generally Griminger, 71 NY2d at641; Bigelow, 66 NY2d at 426-427).
The People further contend that the amended warrant was properly issued becausethe deputy sheriffs who conducted the search properly observed certain stolen property inplain view during the execution of the initial warrant, and used that information to obtainthe amended warrant. We likewise reject that contention. Because the initial warrant wasnot based on probable cause, and evidence obtained from it was used to obtain theamended warrant, the evidence seized pursuant to the amended warrant must also besuppressed (see People v DelRio, 220 AD2d 122, 131 [1996], lv denied88 NY2d 983 [1996]; see also People v Perez, 266 AD2d 242, 243 [1999], lvdismissed 94 NY2d 923 [2000]).
Consequently, "the indictment must be dismissed [because] the unsuccessful appealby the People precludes all further prosecution of defendant for the charges contained inthe accusatory instrument" (People v Felton, 171 AD2d 1034, 1034 [1991],affd 78 NY2d 1063 [1991]; see CPL 450.50 [2]).Present—Scudder, P.J., Smith, Lindley, Valentino and Whalen, JJ.