PEOPLE v. ROCK (2006)

Judgment, Supreme Court, New York County (Brenda Soloff, J. on motion;  Budd G. Goodman, J. at plea and sentence), rendered June 17, 2004, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

The motion court properly denied defendant's motion to controvert the search warrant without a hearing.   Even assuming that defendant had standing (see People v. Whitfield, 81 N.Y.2d 904, 906, 597 N.Y.S.2d 641, 613 N.E.2d 547 [1993] ), he did not demonstrate his entitlement to an evidentiary hearing, since he failed to support his allegation with sufficient proof demonstrating that the warrant affidavit was suspect (see Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 [1978];  People v. Tambe, 71 N.Y.2d 492, 504, 527 N.Y.S.2d 372, 522 N.E.2d 448 [1988] ).   Defendant never attacked the credibility of the affiant, but instead denied engaging in the criminal conduct reported to the affiant.   Since there is no evidence of deliberate manipulative police conduct (see Franks v. Delaware, 438 U.S. at 163-164, 98 S.Ct. 2674) and no evidence that the affiant was unreasonably relying on the informant's information (see People v. Solimine, 18 N.Y.2d 477, 276 N.Y.S.2d 882, 223 N.E.2d 341 [1966] ), there is no basis for a hearing (see People v. Villanueva, 161 A.D.2d 552, 556 N.Y.S.2d 293 [1990] ).