PEOPLE v. BOURDON

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

The PEOPLE of the State of New York, Respondent, v. Ronald D. BOURDON, Appellant.

Decided: February 25, 1999

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Ronald D. Bourdon, Auburn, appellant in person. Gerald F. Mollen, District Attorney (John L. Kotchick III of counsel), Binghamton, for respondent.

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered July 23, 1997, upon a verdict convicting defendant of the crimes of criminal possession of a forged instrument in the second degree (three counts), criminal possession of a forgery device, criminal possession of a weapon in the third degree, criminal possession of a weapon in the fourth degree and criminal impersonation in the second degree.

On June 14, 1996, State Police Investigator Frank Roney executed a search warrant issued by Broome County Court at premises owned by defendant and located at RD 4 Perry Road in the Town of Sanford, Broome County.   The search revealed, among other things, forged drivers' licenses, a rifle and a pistol.   The seizure of the contraband led to his indictment and subsequent conviction of the crimes noted above.

 Defendant, pro se, argues that the warrant was not supported by probable cause in that it relied upon an application from which there were material omissions and which contained false statements by Roney and information supplied by an informant who was not reliable.   Defendant contends that the informant's statements should not have been accepted as the predicate for the issuance of the search warrant inasmuch as the People failed to establish the basis of the informant's knowledge and his reliability under the two-prong test of Aguilar-Spinelli (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).   Defendant's reliance on Aguilar-Spinelli is misplaced.  “The two-prong test applies to ‘information supplied by an undisclosed informant’ * * * A sworn statement of an identified member of the community attesting to facts directly and personally observed by him is in and of itself sufficient to support the issuance of a search warrant * * * ” (People v. David, 234 A.D.2d 787, 788, 652 N.Y.S.2d 324, lv. denied 89 N.Y.2d 1034, 659 N.Y.S.2d 864, 681 N.E.2d 1311, quoting People v. Martinez, 80 N.Y.2d 549, 552, 592 N.Y.S.2d 628, 607 N.E.2d 775 [citation omitted];  see, People v. Hicks, 38 N.Y.2d 90, 92, 378 N.Y.S.2d 660, 341 N.E.2d 227;  People v. McCulloch, 226 A.D.2d 848, 849, 640 N.Y.S.2d 914, lv. denied 88 N.Y.2d 1070, 651 N.Y.S.2d 414, 674 N.E.2d 344).   Here, the informant was an identified citizen named Paul Mollis whose June 13, 1996 sworn statement indicated that he had observed defendant in possession of a handgun and rifle at his Perry Road residence on previous occasions and described how on that date in the driveway of the trailer park where he lived, he saw defendant retrieve a handgun from under the dash of a White GMC van, cock it and return it to its place under the dash.   Mollis also described the factual basis for his information that defendant possessed a forgery device, namely, a State Health Department stamp which he kept at the Perry Road residence or in his van.   Accordingly, we find Mollis' sworn statement sufficient for the issuing Judge to conclude that he was reliable.

Furthermore, at the suppression hearing, defendant asserted that Roney lied in the search warrant application with regard to Mollis' claim that he observed defendant inside the van with the handgun.   Defendant also averred that, while being processed after his arrest, Roney expressed his disbelief of Mollis's claim to him.   Both Mollis and Roney testified at the suppression hearing.   Mollis confirmed his observations of defendant inside the van and Roney denied that he ever told defendant that he did not believe what Mollis told him.

 We conclude that County Court reasonably relied upon Mollis' sworn statement and that, together with Roney's application, it provided the requisite probable cause to believe that evidence of a crime might be found at defendant's premises or in his van (see, People v. Markiewicz, 246 A.D.2d 914, 914-915, 667 N.Y.S.2d 836, lv. denied 91 N.Y.2d 974, 672 N.Y.S.2d 854, 695 N.E.2d 723;  People v. McCulloch, supra, at 849, 640 N.Y.S.2d 914).   Accordingly, we find that the search warrant was properly issued.

 Turning to defendant's next issue, we find no merit to his contention that he was not provided effective assistance of counsel at the trial level.   Defendant received the assistance of three different court-appointed attorneys and claims that each failed to render effective counsel.   However, our examination of the record reveals that the attorneys made appropriate motions, presented defendant's theories through extensive cross-examinations and made cogent arguments on his behalf.   Viewing the evidence, the law and the circumstances of this case in their totality as of the time of the representation, we conclude that defendant's attorneys provided “meaningful representation” (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

We have examined defendant's remaining contentions and find that they lack merit.

ORDERED that the judgment is affirmed.

CARDONA, P.J.

MERCURE, PETERS, SPAIN and CARPINELLO, JJ., concur.

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