The People of the State of New York, Respondent, v. Tony Clanton, Defendant–Appellant.

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Supreme Court, Appellate Division, First Department, New York.

The People of the State of New York, Respondent, v. Tony Clanton, Defendant–Appellant.

5796

Decided: October 20, 2011

Tom, J.P., Andrias, Catterson, Acosta, Renwick, JJ. Steven Banks, The Legal Aid Society, New York (Susan Epstein of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.

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Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered June 10, 2008, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to an aggregate term of 11 years, unanimously affirmed.

The court properly denied defendant's original and renewed motions to controvert a search warrant.   The information provided by a confidential informant and an identified informant established probable cause (see Spinelli v. United States, 393 U.S. 410 [1969];  Aguilar v. Texas, 378 U.S. 108 [1964] ).

The affidavit contained a sufficiently detailed showing of the confidential informant's track record of providing information to the police.   Furthermore, the police independently corroborated detailed predictions provided by that informant, and his reliability was not undermined by his own involvement in criminal activity (see People v. Rodriguez, 52 N.Y.2d 483, 489–490 [1981] ).

Defendant also challenges the basis of each informant's knowledge.   However, each informant was familiar with defendant and had extensive personal knowledge of defendant's criminal activity.   Furthermore, neither informant provided stale information.

The court also properly denied defendant's application for a Franks/Alfinito hearing (see Franks v. Delaware, 438 U.S. 154 [1978];  People v. Alfinito, 16 N.Y.2d 181 [1965] ).   Defendant failed to make the necessary “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit” (Franks, 438 U.S. at 155–156).   Defendant's claim was supported only by a document that the court properly rejected as unreliable.   Under the circumstances, the court was entitled to resolve the issue on the papers before it without taking testimony.

In any event, no hearing was necessary because defendant only challenged the affidavit with respect to the identified informant's statements.   Putting that information aside, the confidential informant's statements still provided probable cause (see id. at 171–172).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK