| People v Cazeau |
| 2021 NY Slip Op 01806 [192 AD3d 1388] |
| March 25, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Berthony Cazeau, Appellant. |
Mitch Kessler, Cohoes, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Ceresia, J.), rendered June 1,2017 in Albany County, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a weapon in the second degree.
Defendant was charged by indictment with criminal possession of a weapon in the seconddegree, criminal possession of a controlled substance in the third degree and criminal possessionof a controlled substance in the fourth degree stemming from a search of his apartment. Thesearch was prompted by a tip from a named citizen informant (hereinafter MZ), who told policethat defendant unlawfully possessed a handgun and detailed the location of drugs that sheclaimed defendant had hidden in his apartment. After a brief investigation by the police, a searchwarrant was applied for and granted. During the search, the police discovered a handgun andecstasy in the apartment. Defendant was subsequently arrested and, following his indictment,moved to suppress the evidence obtained in the search of his apartment, arguing, among otherthings, that the search warrant was not supported by probable cause. A suppression hearing washeld after which Supreme Court denied defendant's motion to suppress the evidence seizedpursuant to the search warrant. Thereafter, defendant pleaded guilty to a reduced charge ofattempted criminal possession of a weapon in the second degree in satisfaction of the indictment.In accordance with the plea agreement,[FN1] defendant was sentenced to a prison term ofseven years, followed by five years of postrelease supervision. Defendant appeals.
Supreme Court properly denied defendant's motion to suppress the evidence seized from thesearch of defendant's apartment. "To establish probable cause for the issuance of a searchwarrant, the warrant application must demonstrate that there is sufficient information to support areasonable belief that evidence of a crime may be found in a certain place" (People v Vanness, 106 AD3d1265, 1266 [2013] [internal quotation marks, brackets and citations omitted], lvdenied 22 NY3d 1044 [2013]; seePeople v Alberts, 161 AD3d 1298, 1304 [2018], lv denied 31 NY3d 1114[2018]). "[S]uch probable cause may be supplied, in whole or in part, by hearsay information,provided that it satisfies the two-part Aguilar-Spinelli test requiring a showing that theinformant is reliable and has a basis of knowledge for the information imparted" (People v Bahr, 35 AD3d 909, 910[2006] [internal quotation marks, brackets and citations omitted], lv denied 8 NY3d 919[2007]; see People v Baptista, 130AD3d 1541, 1541-1542 [2015], lv denied 27 NY3d 991 [2016]). As relevant here,"information provided by private citizen informants . . . is presumed to be reliable,"thus satisfying the first part of the Aguilar-Spinelli test (People v Gibson, 117 AD3d 1317,1321 [2014], affd 24 NY3d 1125 [2015]; see People v Slater, 173 AD2d 1024,1026 [1991], lv denied 78 NY2d 974 [1991]). The second part[*2], basis of knowledge, "can be met when . . . it is clearthe informant was speaking from firsthand knowledge" (People v Hitt, 61 AD2d 857, 857[1978] [internal quotation marks and citations omitted]; see People v Slater, 173 AD2d at1026).
At the suppression hearing, a detective with the Albany Police Department testified that hespoke with a woman who identified herself as MZ, who called to offer information regarding agun crime. The detective testified that he never spoke with MZ in person and that his onlycommunication with her occurred over the phone and through text messaging, as she lived inConnecticut. The detective testified that MZ told him that she previously had a romanticrelationship with defendant and that, while staying with defendant over a weekend, he showedher a handgun and told her that it had been used in a shooting in the City of Albany. Thedetective further stated that MZ told him that defendant sells ecstasy and that he keeps his stashof ecstasy hidden in a speaker in his bedroom. The detective also testified that MZ described thehandgun as a nine-millimeter Glock with a black grip. The detective testified that, to corroboratethe information provided by MZ, he ran defendant's criminal history and found that he had pastconvictions for handgun possession and the sale of ecstasy. The detective further testified that hetook steps to confirm that MZ was who she purported to be; specifically, he asked her questionsonly she or persons close to her would have known, such as her name, date of birth, currentaddress and Social Security number and if the phone that she was using was registered to hername. The detective testified that he ran MZ's name through a database and confirmed theaddress she provided as her residence. The detective also testified that, in obtaining the searchwarrant, he stated that he relied upon the information provided by MZ, that defendant "has apredisposition to dealing in specifically [ecstasy] and has weapons convictions," and the fact thata police investigation verified that defendant resided at the address provided by MZ.
Defendant testified that he was familiar with MZ as he was in a romantic relationship withher that ended in 2014. He also testified that she had not been to the apartment he resided in atthe time of the search. Defendant testified regarding another woman he dated, explaining that thetelephone number the detective received the telephone call from belonged to this woman and thattheir relationship ended "on bad terms." Defendant testified that approximately two weeks beforethe search of his apartment, the other woman spent time at his apartment. Defendant deniedhaving shown this other woman his gun or drugs. MZ testified that she never called the detectiveto discuss defendant and that she had not been to the apartment that was searched. When askedhow this other woman would have obtained MZ's personal information, MZ speculated that itwas possible that [*3]she accidentally left something behind afterliving with defendant years prior.
To the extent that defendant argues that the search warrant is illegal because the informantlied about her identity, we are unpersuaded. Although MZ testified that she was not theinformant, Supreme Court specifically rejected this testimony, and we accord deference to itscredibility determinations (see People vVandebogart, 158 AD3d 976, 978 [2018], lv denied 31 NY3d 1089 [2018]; People v Musto, 106 AD3d 1380,1380 [2013], lv and reconsideration denied 21 NY3d 1007 [2013]). Furthermore, even ifSupreme Court had found MZ's testimony to be credible, the search warrant would not beinvalidated inasmuch as the record does not reveal any evidence that, at the time he applied forthe search warrant, the detective "knew or recklessly disregarded evidence" that the informantwas not who she purported to be (People v Cohen, 90 NY2d 632, 637 [1997]).[FN2]
As to probable cause, we find that the first prong of the Aguilar-Spinelli test issatisfied, as MZ's statement is presumed reliable because MZ is an identified citizen informant(see People v Parris, 83 NY2d 342, 350 [1994]; People v Slater, 173 AD2d at1026). Moreover, the police investigation provided some independent support for the reliabilityof the informant (see People v DiFalco, 80 NY2d 693, 698-699 [1993]; People v Wolfe, 103 AD3d 1031,1033-1034 [2013], lv denied 21 NY3d 1021 [2013]). Further, the very detailed andspecific information provided by MZ regarding the drugs and the gun, which was based on herfirsthand observations, is sufficient to satisfy the second prong of the Aguilar-Spinelli test(see People v Corr, 28 AD3d574, 575 [2006], lv denied 7 NY3d 787 [2006]; People v Slater, 173 AD2d at1026; People v Hitt, 61 AD2d at 857-858). Accordingly, Supreme Court properly denieddefendant's motion to suppress. Defendant's remaining contention, that the police acquiredevidence of his residence as a fruit of unlawful detention, is unpreserved as defendant did notraise this argument in Supreme Court (see People v Kidd, 112 AD3d 994, 997 [2013], lv denied 23NY3d 1039 [2014]).
Garry, P.J., Egan Jr., Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that thejudgment is affirmed.
Footnote 1:Defendant was not required towaive his right to appeal as part of the plea bargain.
Footnote 2:Indeed, the relevant inquiry atthe suppression hearing was whether the detective's application for a search warrant wassupported by probable cause. The issue of whether the information relayed to him by theinformant was not ultimately truthful is "generally irrelevant . . . because the FourthAmendment protects individuals against unreasonable governmental action, not againstmisconduct by fellow citizens" (People v Bashian, 190 AD2d 681, 682-683 [1993][internal quotation marks and citations omitted], lv denied 81 NY2d 836 [1993]).