PEOPLE v. MERRITT (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Chemung County (Richard W. Rich Jr., J.), rendered April 5, 2021, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a weapon in the second degree.

Defendant was charged by indictment with two counts of criminal possession of a controlled substance in the third degree and one count each of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, following the recovery of, among other things, cocaine, drug paraphernalia, a loaded pistol and $7,000 in cash during the execution of a search warrant.  The warrant was premised upon three controlled drug purchases by a confidential informant (hereinafter CI).  Defendant moved to suppress the physical evidence seized and sought a Darden hearing.  After holding the Darden hearing and making the relevant findings, County Court determined that the search warrant was supported by probable cause.  In satisfaction of the indictment, defendant thereafter pleaded guilty to both counts of criminal possession of a controlled substance in the third degree and the single count of criminal possession of a weapon in the second degree, and was sentenced as a second felony offender to concurrent prison terms, the longest of which was nine years, followed by five years of postrelease supervision.  Defendant appeals.

Defendant argues that County Court erred in finding that the search warrant was issued upon probable cause, as the information provided by the CI failed to meet the basis-of-knowledge prong of the Aguilar–Spinelli test.  Assuming that this argument is properly before us, we find it to be without merit.  “In order to establish probable cause for the issuance of a search warrant, the warrant application must demonstrate that there is sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place” (People v. Jackson, 206 A.D.3d 1244, 1245–1246, 169 N.Y.S.3d 747 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted], lv denied 38 N.Y.3d 1151, 174 N.Y.S.3d 45, 194 N.E.3d 752 [2022];  see People v. Oliver, 172 A.D.3d 1457, 1458, 99 N.Y.S.3d 135 [3d Dept. 2019], lv denied 34 N.Y.3d 1080, 116 N.Y.S.3d 135, 139 N.E.3d 793 [2019]).  The search warrant application may rely upon information provided by a CI, “provided that it satisfies the two-part Aguilar–Spinelli test requiring a showing that the informant is reliable and has a basis of knowledge for the information imparted” (People v. Cazeau, 192 A.D.3d 1388, 1388–1389, 145 N.Y.S.3d 191 [3d Dept. 2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 963, 148 N.Y.S.3d 762, 171 N.E.3d 238 [2021]).  A CI's basis of knowledge may be established “through his [or her] own description of underlying circumstances personally observed ․ [or] by police investigation that corroborates the defendant's actions or that develops information consistent with detailed predictions by the informant” (People v. Bigelow, 66 N.Y.2d 417, 423–424, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985];  see People v. Tillie, 239 A.D.2d 670, 671, 657 N.Y.S.2d 791 [3d Dept. 1997], lv denied 91 N.Y.2d 881, 668 N.Y.S.2d 580, 691 N.E.2d 652 [1997]).

Against that backdrop, we begin by noting that the search warrant application indicates that it was accompanied by a sworn statement from the CI, describing the drug transactions in question.  “Under such circumstances, a CI's reliability and the basis of his or her knowledge need not be assessed, as the statement is in and of itself sufficient to support the issuance of a search warrant” (People v. Cowan, 177 A.D.3d 1173, 1175, 114 N.Y.S.3d 506 [3d Dept. 2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 1127, 118 N.Y.S.3d 546, 141 N.E.3d 502 [2020]).  However, recognizing that the sworn statement is not contained in the record on appeal, we have reviewed the transcript of the Darden hearing, which reflects that the information provided to the police by the CI was based upon personal interactions with defendant, “the most reliable demonstration of the basis for a CI's knowledge” (id. [internal quotation marks, brackets and citation omitted];  see People v. Patterson, 199 A.D.3d 1072, 1073, 157 N.Y.S.3d 179 [3d Dept. 2021], lv denied 37 N.Y.3d 1163, 160 N.Y.S.3d 709, 181 N.E.3d 1137 [2022]), and was confirmed by police surveillance of the drug operations (see People v. Jackson, 189 A.D.3d 1705, 1706, 137 N.Y.S.3d 217 [3d Dept. 2020], lv denied 36 N.Y.3d 1098, 144 N.Y.S.3d 136, 167 N.E.3d 1271 [2021];  People v. Mabeus, 63 A.D.3d 1447, 1452, 885 N.Y.S.2d 363 [3d Dept. 2009]).

Contrary to defendant's contention, the CI's basis of knowledge was not undermined by the fact that the CI did not actually enter the apartment during the controlled buys (see People v. Pinchback, 82 N.Y.2d 857, 858, 609 N.Y.S.2d 158, 631 N.E.2d 100 [1993];  People v. Vasquez–Mendez, 115 A.D.3d 593, 593, 982 N.Y.S.2d 317 [1st Dept. 2014], lv denied 23 N.Y.3d 1026, 992 N.Y.S.2d 808, 16 N.E.3d 1288 [2014];  People v. Harvey, 298 A.D.2d 527, 529, 748 N.Y.S.2d 785 [2d Dept. 2002];  People v. Smith, 182 A.D.2d 854, 855–856, 582 N.Y.S.2d 290 [3d Dept. 1992], lv denied 80 N.Y.2d 838, 587 N.Y.S.2d 923, 600 N.E.2d 650 [1992]).  A sufficient nexus to the apartment was established by the continuous surveillance of defendant as he left the apartment on each occasion, traveled directly to meet the CI, and sold to the CI what was later confirmed to be crack cocaine.

In view of the foregoing, County Court properly determined that the CI had an adequate basis of knowledge and that the search warrant was supported by probable cause.  Defendant's remaining contentions are raised for the first time on appeal and are thus unpreserved for our review (see People v. Hayward, 213 A.D.3d 989, 993, 182 N.Y.S.3d 377 [3d Dept. 2023];  People v. Fort, 146 A.D.3d 1017, 1019, 44 N.Y.S.3d 595 [3d Dept. 2017], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017]).

ORDERED that the judgment is affirmed.

Ceresia, J.

Garry, P.J., Clark, Pritzker and Reynolds Fitzgerald, JJ., concur.