PEOPLE v. DIVINE

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The PEOPLE, etc., respondent, v. Mallah DIVINE, appellant.

Decided: February 22, 2017

REINALDO E. RIVERA, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY and VALERIE BRATHWAITE NELSON, JJ. Marianne Karas, Thornwood, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and John B. Latella of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan, J.), rendered January 22, 2016, convicting him of criminal possession of weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record supports the hearing court's determination that the police had probable cause to arrest him. Pursuant to the Aguilar/Spinelli test (see Aguilar v. Texas, 378 U.S. 108; Spinelli v. United States, 393 U.S. 410), where probable cause is predicated in whole or in part upon the hearsay statement of an informant, it must be demonstrated that the informant is reliable and that the informant had a sufficient basis for his or her knowledge (see People v. Parris, 83 N.Y.2d 342, 346; People v. DiFalco, 80 N.Y.2d 693, 695–699; Combs v. City of New York, 130 AD3d 862, 863–864).

The first prong of the Aguilar/Spinelli test was satisfied because the hearing evidence demonstrated that the hearsay information was provided to the police by an identified individual who called the 911 emergency number, and “[a]n identified citizen informant is presumed to be personally reliable” (People v. Parris, 83 N.Y.2d at 350; see People v. Warren, 124 AD3d 699, 700). In addition, the basis of knowledge requirement of the Aguilar/Spinelli test was satisfied here by the People's showing that the information furnished by the informant was sufficiently detailed and that it was corroborated by police observation of conduct that suggested or directly involved criminal activity (see People v. Maldonado, 55 AD3d 626, 627; People v. Tocci, 52 AD3D 541, 541–542; see generally People v. DiFalco, 80 N.Y.2d at 697; People v. Bigelow, 66 N.Y.2d 417, 423; People v. Elwell, 50 N.Y.2d 231, 241).

Accordingly, the hearing court properly denied those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement personnel.