People v Brown

2018 NY Slip Op 08973 [167 AD3d 1331]

December 27, 2018

Appellate Division, Third Department

As corrected through Wednesday, January 30, 2018

[*1]

The People of the State of New York,Respondent, v Theodore Brown, Appellant.

Justin C. Brusgul, Voorheesville, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Lucas W. Finley of counsel), forrespondent.

Clark, J. Appeal from a judgment of the County Court of Broome County (Pelella, J.),rendered December 2, 2016, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a controlled substance in the third degree.

On October 31, 2013, a police investigator applied for and obtained a search warrantauthorizing a search of defendant's home and person based, in part, upon a sworn statement froma confidential informant (hereinafter CI) regarding defendant's possession and distribution ofheroin. That same day, defendant was located at a local motel, where, upon execution of thesearch warrant, he was found to have in his possession 92 red wax bags containing heroin and aknotted wrap of crack cocaine. Defendant's home was subsequently searched and a digital scalewas discovered. Defendant was ultimately indicted on two counts of criminal possession of acontrolled substance in the third degree (possession with intent to sell) (see Penal Law§ 220.16 [1]).

As part of his omnibus motion, defendant sought to suppress the physical evidence on thebasis that probable cause did not exist to support the search warrant. County Court (Smith, J.)denied that motion. Thereafter, in exchange for a negotiated sentence and in full satisfaction ofthe indictment, defendant pleaded guilty to one count of attempted criminal possession of acontrolled substance in the third degree. In accordance with the terms of the plea agreement,defendant was sentenced, as a second felony offender, to a prison term of 41/2years, followed by three years of postrelease supervision. Defendant now appeals, and weaffirm.

Defendant asserts that the evidence seized from his person and from his home should havebeen suppressed because there was insufficient evidence in the search warrant to establish thereliability of the CI and the basis of the CI's knowledge. We disagree. Contrary to defendant'scontention, the Aguilar-Spinelli test is inapplicable because the CI's name was disclosedto County Court in the CI's sworn statement accompanying the search warrant application (see People v Shoga, 89 AD3d1225, 1230 [2011], lv denied 18 NY3d 886 [2012]; People v Banks, 14 AD3d 726,727 [2005], lv denied 4 NY3d 851 [2005]; People v David, 234 AD2d 787,787-788 [1996], lv denied 89 NY2d 1034 [1997]).

A search warrant is properly issued when the application provides "sufficient information 'tosupport a reasonable belief that evidence of a crime may be found in a certain place' "(People v German, 251 AD2d 900, 901 [1998], lv denied 92 NY2d 897 [1998],quoting People v McCulloch, 226 AD2d 848, 849 [1996], lv denied 88 NY2d1070 [1996]; see People v Schaefer,163 AD3d 1179, 1180 [2018], lv denied 32 NY3d 1007 [2018]). Our review of thesearch warrant application reveals that it was supported by sworn statements from both theinvestigator and the named CI. The investigator's statement set forth his background andexperience in investigating and surveilling hundreds of individuals engaged in narcoticstrafficking, as well as his participation in the execution of approximately 1,000 search warrants.He asserted that there was reason to believe that heroin may be found at defendant's homeaddress, which was provided with specificity. As the basis for his belief, the investigator statedthat defendant had been previously convicted of drug charges, that defendant had given theprovided address to police as his home and that a fellow investigator had confirmed thatdefendant's last name appeared on the mailbox for that address. The investigator also indicatedthat, within the two weeks preceding the application, the Broome County Narcotics Task Forcehad directly supervised a controlled buy of a quantity of heroin from defendant, whom the CIobserved "coming from the back porch" of the stated address.

In addition, the CI's sworn statement was provided to County Court in unredacted form at thetime that the search warrant application was presented and again in connection with defendant'ssuppression motion.^[FN*]The statement included the CI's identity and date of birth, the substantial length of time that theCI had known defendant and the details of the CI's prior encounter withdefendant—specifically, the CI's purchase of two bags of heroin from defendant and hisobservation of defendant with a "bag full of bundles of heroin" and an "8 ball of cocaine."Statements from the investigator and the CI established that the CI had been shown a photographof defendant and had confirmed defendant's identity as the seller of the narcotics. Upon a reviewof the warrant application and accompanying sworn statements, we find that it providedsufficient information to reasonably believe that heroin and/or paraphernalia commonlyassociated with the possession and sale of controlled substances would be found on defendant'sperson and in his home (see People v Sall, 295 AD2d 812, 813 [2002], lv denied98 NY2d 771 [2002]; People v Banks, 14 AD3d at 727; People v David, 234AD2d at 788-789). Accordingly, as the application provided probable cause for the issuance ofthe search warrant, County Court properly denied defendant's motion to suppress the physicalevidence found on his person and in his home.

Defendant further contends that he should have been granted a Darden hearing.However, this issue is not preserved for our review. Although defendant requested aDarden hearing in the notice of motion accompanying his omnibus motion, he did not setforth a factual basis for such hearing (see People v Hamilton, 276 AD2d 715, 716 [2000],lv denied 96 NY2d 759 [2001]; see generally People v Mendoza, 82 NY2d 415,421-422 [1993]). Moreover, County Court did not address defendant's request in its decision onthe motion to suppress and, "[b]y acquiescing in the lack of a ruling," defendant effectivelyabandoned any request for a Darden hearing (People v Bigelow, 68 AD3d 1127, 1128 [2009], lv denied14 NY3d 797 [2010]; see People vGreen, 90 AD3d 1151, 1152 [2011], lv denied 18 NY3d 994 [2012]). To theextent that we have not addressed any of defendant's contentions, they have been reviewed andfound to be without merit.

Garry, P.J., McCarthy, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.

Footnote *:This Court has obtained andreviewed an unredacted copy of the CI's sworn statement.