| People v Oliver |
| 2019 NY Slip Op 03407 [172 AD3d 1457] |
| May 2, 2019 |
| Appellate Division, Third Department |
[*1](May 2, 2019)
| The People of the State of New York,Respondent, v Michael Oliver, Appellant. |
Cynthia G. Kasnia, Poughkeepsie, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered December 1, 2014, convicting defendant upon his plea of guilty of the crimes ofcriminal possession of a controlled substance in the first degree and criminal possession of acontrolled substance in the third degree.
On December 3, 2013, members of various federal and state law enforcement agenciesexecuted a search warrant at defendant's second-floor apartment located on Washington Avenuein the City of Albany. Upon execution of the warrant, police discovered more than eight ouncesof cocaine in the apartment. Defendant was arrested at the scene and subsequently charged byindictment with criminal possession of a controlled substance in the first degree and criminalpossession of a controlled substance in the third degree. As part of his omnibus motion,defendant moved to suppress the physical evidence obtained during the search. Following aMapp hearing, County Court denied defendant's suppression motion. On the third day oftrial, defendant pleaded guilty to the indictment. He was thereafter sentenced, as a nonviolentpredicate offender, to a prison term of 16 years, to be followed by five years postreleasesupervision, for his conviction of criminal possession of a controlled substance in the first degreeand a prison term of 10 years, to be followed by three years of postrelease supervision, for hisconviction of criminal possession of a controlled substance in the third degree, with the sentencesto run concurrently. Defendant now appeals.
Defendant contends that County Court should have granted his motion to suppress theevidence seized because there was insufficient evidence contained in the search warrantapplication to establish the reliability of the confidential informant (hereinafter CI). We disagree.A search warrant issued by a judge is presumed to be valid (see People v Castillo, 80NY2d 578, 585 [1992], cert denied 507 US 1033 [1993]; People v Brewer, 155 AD3d 1447,1449 [2017]) and will be upheld as long as the application provides "sufficient information tosupport a reasonable belief that evidence of a crime will be found in a particular place" (People v Luciano, 152 AD3d 989,991 [2017] [internal quotation marks and citation omitted], lv denied 30 NY3d 1020[2017]). Where a search warrant application is based upon information obtained from a CI, theapplication must demonstrate the veracity and/or reliability of the CI and the basis of the CI'sknowledge (see People v Chisholm,21 NY3d 990, 994 [2013]; People vWolfe, 103 AD3d 1031, 1033 [2013], lv denied 21 NY3d 1021 [2013]).Notably, there is "no one acid test of reliability," and a CI will be found reliable where it isdemonstrated that he or she has provided accurate information in the past and/or where theinformation provided by the CI is corroborated by independent police investigation (People vRodriguez, 52 NY2d 483, 489 [1981]; see People v Palin, 158 AD3d 936, 937-938 [2018], lvdenied 31 NY3d 1016 [2018]; People v Vargas, 72 AD3d 1114, 1115-1116 [2010], lvdenied 15 NY3d 758 [2010]).
Here, the search warrant application for the apartment was supported by the affidavit ofJustin Jones, a special agent with Immigration and Customs Enforcement who was assigned toinvestigate narcotics trafficking with the Drug Enforcement Agency. Jones' affidavit indicatesthat he received information from an undisclosed CI indicating that, over the past five years,defendant had regularly sold large quantities of cocaine to the CI. The CI informed the police thatthe drug transactions were generally initiated by a text message to defendant where an agreementwould be reached with respect to the amount of cocaine to be purchased and the meet location forthe transaction. Based on the information provided by the CI, on December 3, 2013, Jones hadthe CI send a text message to defendant and set up a controlled buy at defendant's apartment.Jones then searched the CI for contraband, equipped him with a recording device andprerecorded buy money and thereafter supervised the controlled buy, listening in "real time" asthe CI entered defendant's Washington Avenue apartment and purchased approximately 100grams of cocaine for $4,100. Upon exiting defendant's apartment, the CI "turned over a quantityof white substance" to law enforcement, which subsequently field-tested positive for the presenceof cocaine. The CI also indicated that he had observed additional large quantities of cocainewithin defendant's apartment. Given the CI's history of drug purchases from defendant, hisobservations within defendant's apartment and the corroboration provided by law enforcement'ssurveillance of the CI's controlled buy at defendant's apartment and confirmation that thesubstance purchased by the CI was, in fact, cocaine, we find that there was sufficient informationin the search warrant application to establish the CI's reliability (see People v Brown, 167 AD3d1331, 1333 [2018]; People v Palin, 158 AD3d at 937-938; People v Cavallaro, 123 AD3d1221, 1222 [2014]; People v Tyrell, 248 AD2d 747, 748 [1998], lv denied 92NY2d 907 [1998]).
We reject defendant's contention that the search warrant was improperly executed. Contraryto defendant's assertion, the entry and search of defendant's apartment by law enforcement didnot occur prior to issuance of the subject search warrant. The testimony at the suppressionhearing established that, immediately following the CI's controlled buy from defendant, Jonesand an Albany County Assistant District Attorney prepared a search warrant application, whichJones then presented to a judge for review. Jones testified that he swore to the contents of hisaffidavit in support of the application and signed it in the judge's presence, after which the judgesigned the warrant. Jones testified that, although he then communicated to law enforcement onthe scene that he had obtained the search warrant, law enforcement did not actually execute it andmake entry into defendant's apartment until after he had arrived back at the scene with thewarrant in hand. To the extent that defendant avers that the time of defendant's arrest as indicatedon defendant's arrest report contradicts Jones' testimony with respect to when the search warrantwas actually obtained, this issue presented County Court with a credibility determination (seePeople v Bowers, 92 AD2d 669, 670 [1983]), which, upon review, we find was appropriatelyresolved in the People's favor. Accordingly, inasmuch as the evidence at the suppression hearingestablished that law enforcement entered defendant's apartment with actual possession of asearch warrant validly issued by a judge immediately prior thereto, this was not a warrantlesssearch and we find that the warrant was properly executed (see People v Mahoney, 58NY2d 475, 480 [1983]; People v Williams, 275 AD2d 753, 754 [2000], lv denied96 NY2d 764 [2001]; People v Mikolasko, 144 AD2d 760, 761 [1988], lv denied74 NY2d 666 [1989]).
Lastly, defendant's contention that he was denied the effective assistance of counsel isunpreserved for review in the absence of an appropriate postallocution motion (see People v Curtis, 144 AD3d1199, 1201 [2016]; People vJenkins, 130 AD3d 1091, 1091 [2015]). Were this issue properly before us, we wouldfind it to be without merit. Defendant's assertion that he was not satisfied with his counsel'srepresentation is belied by the record, as defendant affirmatively represented during his pleaallocution that he was satisfied with same (see People v Griffin, 165 AD3d 1316, 1317-1318 [2018]). Defensecounsel provided meaningful representation by making appropriate pretrial motions, vigorouslypursuing suppression of the physical evidence seized by law enforcement and ultimatelyprocuring a plea deal whereby defendant received a prison sentence far less than the maximumallowable by law (see People vLomax, 161 AD3d 1454, 1456 [2018], lv denied 32 NY3d 1113 [2018]; People v Beekman, 134 AD3d1355, 1357 [2015], lv denied 27 NY3d 992 [2016]).
Garry, P.J., Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.