| People v High |
| 2021 NY Slip Op 06884 [200 AD3d 1209] |
| December 9, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Damien M. High, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered September 25, 2018, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the third degree (two counts).
Defendant was charged by indictment with two counts of criminal possession of a controlledsubstance in the third degree based on the recovery of crack cocaine from just outside of hisresidence during the execution of a search warrant. The warrant was premised upon informationprovided by a confidential informant (hereinafter CI). Defendant challenged the reliability of theinformation underlying the search warrant and the admissibility of certain of his statements tolaw enforcement. Following Darden and Huntley hearings, respectively, CountyCourt found the information sufficiently reliable and the statements admissible. Defendantthereafter entered into a plea agreement, pleading guilty as charged with a promise of amaximum prison term of five years with three years of postrelease supervision. County Courtultimately imposed concurrent prison terms of four years, followed by three years of postreleasesupervision. Defendant appeals.
Defendant argues that County Court erred in finding that probable cause supported the searchwarrant, as the CI who provided the underlying information was not shown to be reliable ortrustworthy. Here, "the warrant application [was] supported by the sworn affidavit of aninformant whose identity [was] disclosed to the issuing [j]udge" (People v David, 234AD2d 787, 787-788 [1996], lv denied 89 NY2d 1034 [1997]; see People v Shoga, 89 AD3d1225, 1230 [2011], lv denied 18 NY3d 886 [2012]). "A sworn statement of anidentified member of the community attesting to facts directly and personally observed by him[or her] is in and of itself sufficient to support the issuance of a search warrant" (People vDavid, 234 AD2d at 788 [citations omitted]; see People v Hicks, 38 NY2d 90, 93[1975]; People v Cowan, 177 AD3d1173, 1174-1175 [2019], lv denied 34 NY3d 1127 [2020]). As the CI's identity wasmade known, in camera, to the issuing court and the statement was a firsthand account madeunder penalty of perjury, probable cause can be established without further need for"demonstrat[ing] the veracity and/or reliability of the CI and the basis of the CI's knowledge" (People v Oliver, 172 AD3d 1457,1459 [2019], lv denied 34 NY3d 1080 [2019]; see People v Cowan, 177 AD3d at1175).
County Court's credibility determinations relative to the Darden hearing "areaccorded deference on appeal, and will not be disturbed unless they are not supported by therecord" (People v Nettles, 186AD3d 861, 863 [2020]; see Peoplev Binion, 100 AD3d 1514, 1515 [2012], lv denied 21 NY3d 911 [2013]), andany minor discrepancies between the sworn statement underlying the search warrant applicationand the testimony at the Darden hearing a year later do not undermine the validity of thesearch [*2]warrant. Upon review, the Darden hearingtranscript demonstrates that the CI's communications established probable cause (see Peoplev Shoga, 89 AD3d at 1230; People vLowe, 50 AD3d 516, 516 [2008], affd 12 NY3d 768 [2009]), and thus, CountyCourt properly denied defendant's request to suppress the cocaine.
As to the statements defendant made at the time of his arrest and at the police stationthereafter, "[o]n a motion to suppress, the People bear the burden of proving beyond a reasonabledoubt that the defendant's statement[s] to police [were] voluntarily given, including that anycustodial interrogation was preceded by the administration and the defendant's knowing waiverof his or her Miranda rights" (People v Garrand, 189 AD3d 1763, 1767 [2020] [internal quotationmarks, brackets and citations omitted], lv denied 36 NY3d 1120 [2021]; see CPL60.45; People v Muller, 155 AD3d1091, 1092 [2017], lv denied 30 NY3d 1118 [2018]) and "were not the product ofunduly coercive or deceptive police conduct" (People v Scaringe, 137 AD3d 1409, 1412 [2016], lv denied28 NY3d 936 [2016]; see People v JinCheng Lin, 26 NY3d 701, 719 [2016]). "Determining whether a statement is voluntary isa factual issue governed by the totality of the circumstances and the credibility assessments of thesuppression court in making that determination are entitled to deference" (People v Butcher, 192 AD3d 1196,1197 [2021] [internal quotation marks and citation omitted], lv denied 36 NY3d 1118[2021]; see People v Garrand, 189 AD3d at 1768). "Once the People have met theirburden, the burden of persuasion shifts to the defendant to adduce evidence supporting his or hercontention that he or she did not comprehend his or her rights" (People v Garrand, 189AD3d at 1768 [internal quotation marks, brackets and citation omitted]; see People v Newell, 148 AD3d1216, 1218 [2017], lv denied 29 NY3d 1035 [2017]).
Here, the arresting officer testified that he issued Miranda warnings to defendant atthe time of his arrest, prior to any inculpatory statements, and that defendant acknowledged thathe understood his rights and voluntarily waived them. The officer reminded defendant that thosewarnings still applied at the police station roughly an hour later, before further inculpatorystatements were made; defendant again acknowledged his understanding and agreed to speakwith the police. The officer denied making any promise to defendant in exchange for hiscooperation. Defendant presented no evidence contradicting this version of events. County Courtcredited the officer's testimony, and we accord deference to that finding (see People v Vazquez, 145 AD3d1268, 1270 [2016]; People vNadal, 131 AD3d 729, 730 [2015], lv denied 26 NY3d 1041 [2015]; Peoplev Cline, 192 AD2d 957, 958 [1993], lv denied 81 NY2d 1071 [1993]). Further, themere presence of defendant's goddaughter and her children during the arrest and ensuing searchdid not create a substantial risk that defendant might [*3]falselyincriminate himself (see People v Mateo, 2 NY3d 383, 415-416 [2004], certdenied 542 US 946 [2004]; People vCavallaro, 123 AD3d 1221, 1223 [2014]; People v Johnson, 177 AD2d 791, 792[1991]). County Court did not err in declining to suppress defendant's statements to the police(see People v Nadal, 131 AD3d at 730; People v Cavallaro, 123 AD3d at1223).
Finally, defendant contends that the sentence imposed was harsh and excessive. However,the sentence was consistent with the plea agreement and well below the statutory maximum term.We find no extraordinary circumstances here warranting a reduction of the sentence in theinterest of justice (see People vAlolafi, 170 AD3d 1379, 1380 [2019]).
Lynch, Clark, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.