THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ERIC REYNOLDS DEFENDANT APPELLANT APPEAL NO (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of three counts of criminal possession of a weapon in the third degree (Penal Law § 265.02 [7]). In appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the first degree (§ 265.04 [1]). We affirm.

Defendant's constitutional challenge in his pro se supplemental brief in appeal No. 1 “is not preserved for our review inasmuch as he failed to raise any such challenge before the trial court” (People v Mabry, 214 AD3d 1300, 1301 [4th Dept 2023], lv denied 40 NY3d 935 [2023], reconsideration denied 40 NY3d 1081 [2023]; see People v Manning, 227 AD3d 1439, 1442 [4th Dept 2024], lv denied 42 NY3d 1053 [2024]), and we decline to exercise our power to review defendant's unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary to defendant's contention, “[t]he unconstitutionality of a statute is not exempt from the requirement of preservation” (People v McWilliams, 214 AD3d 1328, 1329 [4th Dept 2023], lv denied 39 NY3d 1156 [2023] [internal quotation marks omitted]; see People v Benjamin-Foster, 215 AD3d 1277, 1277 [4th Dept 2023], lv denied 40 NY3d 927 [2023]).

Defendant contends in his main brief in appeal No. 1 that one or more of the search warrants that directly or indirectly resulted in the seizure of tangible evidence supporting the three counts of criminal possession of a weapon in the third degree of which he was convicted were not supported by probable cause. Preliminarily, we note that defendant's general objection to the warrants in his first omnibus motion was insufficient to preserve for our review his contentions that the underlying warrant applications failed to articulate a sufficient factual nexus between the place to be searched and the items sought therein, that one or more of the underlying warrant applications contained false or misleading statements, or that the police exceeded the scope of certain warrants in their execution (see People v Gambale, 150 AD3d 1667, 1667-1668 [4th Dept 2017]; People v Morman, 145 AD3d 1435, 1435-1436 [4th Dept 2016], lv denied 29 NY3d 999 [2017]). Defendant's contention that one or more of the underlying warrant applications included hearsay information as to the training in explosive ordnance of members of the United States Marine Corps engaged in anti-tank assault service and failed to meet the Aguilar-Spinelli test is properly before us inasmuch as Supreme Court specifically ruled that all of the warrant applications satisfied Aguilar-Spinelli, and “[a] general objection ․ is sufficient to preserve an issue for review when the trial court expressly decided the question raised on appeal” (People v Parker, 32 NY3d 49, 57 [2018] [internal quotation marks omitted]; see CPL 470.05 [2]).

With respect to the merits of the preserved contention, “New York's present law applies the Aguilar-Spinelli rule for evaluating secondhand information and holds that if probable cause is based on hearsay statements, the police must establish that the [source of the statement] had some basis for the knowledge ․ transmitted to [the police] and that [the source] was reliable” (People v Bartholomew, 132 AD3d 1279, 1280 [4th Dept 2015] [internal quotation marks omitted]; see People v Edwards, 95 NY2d 486, 495 [2000]). Here, the underlying warrant applications all contain the same statements establishing that the hearsay information that defendant objects to was provided to the affiant police investigator by a fellow Rochester Police Department officer, assigned to the Bomb Squad, who advised the affiant that he was a former member of the United States Marine Corps who had been trained in explosive ordnance and demolition and had firsthand knowledge of the cross-training of Marines, such as defendant, assigned to anti-tank assault units. Thus, “the hearsay information supplied in the search warrant application[s] satisfied the two prongs of the Aguilar-Spinelli test and ․ the search warrant[s] w[ere] issued upon probable cause” (People v Jones, 224 AD3d 1348, 1349 [4th Dept 2024], lv denied 41 NY3d 1019 [2024] [internal quotation marks omitted]).

As defendant contends in his main brief in appeal No. 2 and the People correctly concede, the record does not establish that defendant validly waived his right to appeal in appeal No. 2. The court's “oral waiver colloquy and the written waiver signed by defendant together mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal ․, and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues” (People v Johnson, 192 AD3d 1494, 1495 [4th Dept 2021], lv denied 37 NY3d 965 [2021] [internal quotation marks omitted]; see People v Brown, 207 AD3d 1085, 1085 [4th Dept 2022], lv denied 39 NY3d 939 [2022]).

Nonetheless, defendant failed to preserve for our review the contention in his main brief in appeal No. 2 that counts 6 through 11 and 14 through 17 of the superseding indictment are defective because gasoline is not an “explosive or incendiary bomb” or an “explosive substance” as required to convict under Penal Law §§ 265.02 (2) and 265.04 (1), inasmuch as he “failed to set forth th[ose] specific ground[s] in that part of his omnibus motion seeking to dismiss the [superseding] indictment” (People v Davis, 87 AD3d 1332, 1333 [4th Dept 2011], lv denied 18 NY3d 858 [2011], reconsideration denied 18 NY3d 956 [2012]; see generally People v Agee, 57 AD3d 1486, 1486-1487 [4th Dept 2008], lv denied 12 NY3d 813 [2009]).

Contrary to the final contention in defendant's main brief in appeal Nos. 1 and 2, the sentence is not unduly harsh or severe.

We have reviewed defendant's remaining contentions in his main brief in appeal Nos. 1 and 2 and conclude that none warrants reversal or modification of the judgment.

Entered: October 9, 2026

Ann Dillon Flynn

Clerk of the Court