PEOPLE v. PENN (2018)

Judgment, Supreme Court, New York County (James M. Burke, J.), rendered November 16, 2016, convicting defendant, upon his plea of guilty, of robbery in the first degree (three counts) and robbery in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 10 years, unanimously affirmed.

The search warrant for defendant's apartment was supported by probable cause.  The warrant affidavit set forth extensive information, including DNA evidence, connecting defendant with several robberies.  The affidavit's omission of facts raising potential issues about some of the identification evidence did not undermine probable cause, which does not require proof beyond a reasonable doubt (see Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 [1949];  People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ).

Even assuming that the warrant's authorization for the seizure and search of cell phones and other electronic devices was somewhat overbroad, the balance of the warrant, pursuant to which evidence implicating defendant in two of the charged robberies was recovered, was not invalidated (see People v. Brown, 96 N.Y.2d 80, 85, 725 N.Y.S.2d 601, 749 N.E.2d 170 [2001] ).  Since there is no indication that any incriminating evidence was derived from the search of electronic devices, any deficiency in that aspect of the search warrant was plainly harmless.

By failing to call the motion court's attention to the fact that the issue remained unresolved, defendant abandoned his contention that the People failed to establish the timeliness of the warrant's execution (see e.g. People v. Brimage, 214 A.D.2d 454, 631 N.Y.S.2d 2 [1995], lv denied 86 N.Y.2d 732, 631 N.Y.S.2d 613, 655 N.E.2d 710 [1995] ).