PEOPLE v. CHISHOLM

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The PEOPLE, etc., respondent, v. Derek CHISHOLM, appellant.

Decided: February 24, 2016

THOMAS A. DICKERSON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and SANDRA L. SGROI, JJ. Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser and Steven R. Bernhard of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, and Josette Simmons McGhee of counsel), for respondent.

Appeal by the defendant (1) from a judgment of the Supreme Court, Queens County (Holder, J.), rendered January 6, 2009, as amended September 4, 2013 (Aloise, J.), upon remittitur from the Court of Appeals (21 NY3d 990), which brings up for review the denial of that branch of the defendant's omnibus motion which was to suppress physical evidence, and (2), as limited by his brief, from so much of an order of the same court (Aloise, J.), dated April 29, 2014, as, upon reargument, adhered to its prior determination in the amended judgment that there was probable cause for the issuance of a search warrant.

ORDERED that the appeal from the order dated April 29, 2014, is dismissed (see CPL 450.10); and it is further,

ORDERED that the amended judgment is affirmed.

Contrary to the defendant's contention, the evidence contained in an affidavit of a police officer, coupled with the evidence provided by an informant's sworn and recorded testimony, established probable cause for the issuance of the subject search warrant (see People v.. Brown, 40 N.Y.2d 183; People v. Harrison, 6 AD3d 723; People v. Rivenburgh, 1 AD3d 696; People v. Serrano, 292 A.D.2d 249; People v. Christopher, 258 A.D.2d 662).

The order dated April 29, 2014, is not appealable as of right or by permission (see CPL 450.10; 450.15). However, the defendant's argument that the evidence did not establish probable cause to support the issuance of the search warrant was considered on the appeal from the amended judgment.

Motion by the respondent on appeals from a judgment of the Supreme Court, Queens County (Holder, J.), rendered January 6, 2009, as amended September 4, 2013 (Aloise J.), and from an order of the same court (Aloise, J.), dated April 29, 2014, to strike the appellant's brief on the ground that it refers to matter dehors the record. By decision and order on motion of this Court dated October 14, 2015, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is

ORDERED that the motion is granted to the extent that the appellant's brief is sealed and the motion is otherwise denied.

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