PEOPLE v. PRATT (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered September 12, 1996, convicting him of criminal possession of a controlled substance in the third degree, criminal possession of a weapon in the fourth degree (two counts), criminal possession of a controlled substance in the seventh degree, and criminally using drug paraphernalia in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 There is no merit to the defendant's claims that a confidential informant's reliability was not established and thus that a search warrant should not have been issued.   The informant had appeared before the issuing Judge, identified himself, testified under oath as to his personal knowledge and observations, and had further sworn that the information in the applying officer's affidavit was true.   Under these circumstances, the Aguilar-Spinelli standard (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 inapplicable, as the issuing Judge was in a position to assess directly the informant's veracity in connection with the court's probable cause determination (see, People v. Taylor, 73 N.Y.2d 683, 688, 543 N.Y.S.2d 357, 541 N.E.2d 386;  People v. Christopher, 258 A.D.2d 662, 685 N.Y.S.2d 786;  People v. Walker, 244 A.D.2d 796, 797, 665 N.Y.S.2d 720;  see also, People v. Brown, 40 N.Y.2d 183, 187-188, 386 N.Y.S.2d 359, 352 N.E.2d 545).

 We agree that the People's narcotics expert was improperly permitted to testify to, among other things, his opinion that the apartment in which the defendant was found in the presence of various contraband upon the execution of the search warrant was a drug “factory” as this invaded the jury's province as the ultimate fact-finder (see, People v. Williams, 224 A.D.2d 725, 638 N.Y.S.2d 705;  People v. Goodwine, 177 A.D.2d 708, 709, 576 N.Y.S.2d 881;  see generally, Kulak v. Nationwide Mut. Ins. Co., 40 N.Y.2d 140, 147-148, 386 N.Y.S.2d 87, 351 N.E.2d 735).   Nevertheless, this constituted harmless error given the overwhelming evidence of the defendant's guilt and the absence of a significant probability that the jury would have acquitted the defendant but for the error (see, People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  see also, People v. Williams, supra;  People v. Goodwine, supra;  People v. Forcione, 156 A.D.2d 952, 549 N.Y.S.2d 248).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.

MEMORANDUM BY THE COURT.