PEOPLE v. WHITE

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

The PEOPLE, etc., appellant, v. Robert K. WHITE, respondent.

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. Martin R. Stolar, New York, N.Y., for respondent.

Appeal by the People from an order of the Supreme Court, Kings County (Irizarry, J.), dated April 9, 1998, which granted those branches of the defendant's omnibus motion 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 defendant's omnibus motion which were to controvert a search warrant and to suppress physical evidence are denied.

The Supreme Court erred in granting those branches of the defendant's motion which were to controvert a search warrant and to suppress physical evidence.   Here, both a registered confidential informant and the police officer who applied for the warrant appeared before the issuing Magistrate and testified under oath in support of the application.   The informant testified, 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), inter alia, that he had personally observed weapons and other contraband in the defendant's apartment.   These personal observations, taken together with the additional information before the Magistrate, established probable cause supporting the issuance of the warrant (see, 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. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451;  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).

MEMORANDUM BY THE COURT.

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