PEOPLE v. TORDELLA (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered July 13, 2005, convicting him of criminal possession of a dangerous weapon in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The Supreme Court properly denied, without a hearing, the defendant's motion to controvert the two search warrants issued.   The defendant failed to make the necessary substantial preliminary showing that the warrants were based upon affidavits containing false statements made knowingly or intentionally or with reckless disregard for the truth (see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667;  People v. Alfinito, 16 N.Y.2d 181, 186, 264 N.Y.S.2d 243, 211 N.E.2d 644;  People v. Novick, 293 A.D.2d 692, 740 N.Y.S.2d 641).   In any event, apart from the challenged statements, the remaining facts presented to the issuing magistrate were sufficient to establish probable cause for the searches (see People v. Tambe, 71 N.Y.2d 492, 527 N.Y.S.2d 372, 522 N.E.2d 448).   The defendant's claim that the initial warrant application did not satisfy 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) is without merit.   The confidential informant appeared before the issuing magistrate, was sworn, and provided information supporting probable cause for the issuance of the search warrant.   Under those circumstances, Aguilar-Spinelli is inapplicable (see People v. Taylor, 73 N.Y.2d 683, 543 N.Y.S.2d 357, 541 N.E.2d 386;  People v. Small, 22 A.D.3d 509, 804 N.Y.S.2d 89;  People v. Pratt, 266 A.D.2d 318, 698 N.Y.S.2d 283).