PEOPLE v. CHRISTOPHER

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

The PEOPLE, etc., appellant, v. Maurice CHRISTOPHER and Tonya Jackson, respondents.

Decided: February 22, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON and GLORIA GOLDSTEIN, JJ. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Leonard Joblove, and Valerie A. DePalma of counsel), for appellant. Lynn W.L. Fahey, New York, N.Y. (Denice Powell of counsel), for respondent Maurice Christopher. Ita Parnass, Brooklyn, N.Y., for respondent Tonya Jackson.

Appeal by the People from an order of the Supreme Court, Kings County (Irizarry, J.), dated April 20, 1998, which granted those branches of the defendants' omnibus motions which were to controvert a search warrant and to suppress physical evidence.

ORDERED that the order is reversed, on the law, and those branches of the defendants' omnibus motions which were to controvert a search warrant and to suppress physical evidence are denied.

The Supreme Court erred in granting those branches of the defendants' omnibus motion which were to controvert a search warrant and to suppress physical evidence upon the ground that the warrant application failed to demonstrate compliance with the two-prong 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).

The record establishes that a confidential informant appeared before the issuing Magistrate and testified under oath to the truthfulness of the factual assertions contained in the warrant application.   Notably, the Court of Appeals has observed that “[t]he Aguilar standard is inapplicable * * * when there is presented to the issuing Magistrate a sworn statement of the factual information sufficient to establish probable cause for the warrant's issuance, made by one * * * as to whom the data is firsthand information by reason of his personal observations and participation in the events described” (People v. Bartolomeo, 53 N.Y.2d 225, 234, 440 N.Y.S.2d 894, 423 N.E.2d 371;  see also, People v. Taylor, 73 N.Y.2d 683, 688, 543 N.Y.S.2d 357, 541 N.E.2d 386;  People v. Hicks, 38 N.Y.2d 90, 93, 378 N.Y.S.2d 660, 341 N.E.2d 227;  People v. Walker, 244 A.D.2d 796, 665 N.Y.S.2d 720;  People v. Mink, 237 A.D.2d 664, 655 N.Y.S.2d 115;  People v. David, 234 A.D.2d 787, 652 N.Y.S.2d 324;  People v. Doyle, 222 A.D.2d 875, 635 N.Y.S.2d 718).

Here, the warrant application, taken together with the informant's sworn statement, given under penalty of perjury (see, People v. Brown, 40 N.Y.2d 183, 188, 386 N.Y.S.2d 359, 352 N.E.2d 545), demonstrated that the information provided was obtained “by reason of [the informant's] personal observations and participation in the events described” (People v. Bartolomeo, supra), which established probable cause supporting issuance of the warrant (People v. Hicks, supra).   Accordingly, those branches of the defendants' motions which were to controvert the warrant and to suppress physical evidence should have been denied.

MEMORANDUM BY THE COURT.

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