People v. De Luca

Appeal from a judgment of the County Court of Albany County, rendered December 19, 1975, convicting defendant on his plea of guilty of criminal possession of a controlled substance in the sixth degree. Defendant contends that his sentence to an indeterminate sentence not to exceed four years was excessive. He also contends, inter alia, that his motion to quash the search warrant and to suppress evidence seized in the search conducted under said warrant was improperly denied. In support of his appeal on the denial of his suppression motion, defendant contends that the affidavit on which the application was based was insufficient to establish probable cause to believe that the specified property would be found upon the premises and persons designated therein. We disagree. His contention that the information of the confidential informants was stale is without merit. Investigator Ruth stated in his application that his conversations 1062 with his informants occurred during the latter part of April concerning a course of conduct of continuing sale of drugs and was acted upon by the second day of May in the procurement of the search warrant. Such information was sufficiently fresh to warrant the issuance of a search warrant. The first informant’s reliability was adequately established by his information given against penal interest, by his usefulness in a prior arrest, and by the affiant’s personal observation of the odor of marijuana smoke emanating from the premises designated by the first informant. Likewise, the second informant’s reliability was adequately established by his past usefulness leading to the arrest and conviction in two prior cases (People v Montague, 19 NY2d 121, 122; People v Rogers, 15 NY2d 422). We find no merit in defendant’s contention that the sentence was excessive. Judgment affirmed. Greenblott, J. P., Sweeney, Kane, Mahoney and Main, JJ., concur.