PEOPLE v. SHETLER (1998)

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of marihuana in the second degree (Penal Law § 221.25).   Defendant contends that County Court erred in denying his motion to suppress marihuana seized at his trailer pursuant to an allegedly invalid search warrant.

 The search warrant application satisfies both prongs of the Aguilar-Spinelli test (see, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723;  Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637).   Although the informant had not provided information in the past, his declaration against his penal interest (see, People v. Comforto, 62 N.Y.2d 725, 476 N.Y.S.2d 815, 465 N.E.2d 354), together with the investigator's prior investigation of defendant for the sale of marihuana, sufficiently established the informant's reliability (see, People v. Lisk, 216 A.D.2d 851, 629 N.Y.S.2d 99, lv. denied 87 N.Y.2d 904, 641 N.Y.S.2d 234, 663 N.E.2d 1264).   The basis of knowledge prong is satisfied because the statement of the informant describes his personal observation of defendant obtaining marihuana from inside defendant's trailer (see, People v. Rodriguez, 52 N.Y.2d 483, 495, 438 N.Y.S.2d 754, 420 N.E.2d 946;  People v. Harwood, 90 A.D.2d 923, 457 N.Y.S.2d 940).

 There is no merit to defendant's contention that the search warrant application contained a material omission.   The investigator testified that he only included the second statement of the informant because he believed that it was an “elaboration” of the informant's initial statement.   Moreover, the informant was interviewed by the issuing Magistrate to determine the veracity of the informant's statement (see, People v. Gaspar, 132 A.D.2d 990, 518 N.Y.S.2d 519, appeal dismissed 71 N.Y.2d 887, 527 N.Y.S.2d 765, 522 N.E.2d 1063).   The apparent typographical error in the search warrant with respect to the time when the warrant could be executed does not invalidate the search.   There is no indication that the issuing Magistrate intended to restrict execution to a three-hour period between 6:00 P.M. and 9:00 P.M. (see, CPL 690.30[2];  People v. Markiewicz, 246 A.D.2d 914, 667 N.Y.S.2d 836, lv. denied 91 N.Y.2d 974, 672 N.Y.S.2d 854, 695 N.E.2d 723;  People v. Eldridge, 173 A.D.2d 975, 569 N.Y.S.2d 482;  People v. Crispell, 110 A.D.2d 926, 487 N.Y.S.2d 174).

We have reviewed defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: