People v. Cassella

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dufficy, J.), rendered April 28, 1987, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence and statements made by him to the police. Ordered that the judgment is reversed, on the law, that branch of the defendant’s motion which was to suppress physical evidence and the defendant’s statements to the police is granted, the plea is vacated, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. The findings of fact have been considered and are determined to have been established. On March 19, 1986, the police and agents of the United States Secret Service executed a search warrant at the premises located at 157-68 9th Avenue, Beechhurst, Queens County, New York. The affidavits submitted in support of the application for this warrant contained allegations that an informant, who had previously been arrested in connection with a credit card scheme, had stated that the defendant was providing the informant with forged and altered credit cards and was receiving stolen property obtained with the credit cards. The informant further alleged that the defendant, whom he knew as "Rocky”, received the stolen goods at his home at the corner of 160th Street and 9th Avenue. The informant provided the police with the defendant’s telephone number and a description of his automobile. The police thereafter conducted an investigation which consisted of verifying that the defendant’s address, telephone number and automobile registration were as the informant had stated. The police investigated the defendant’s prior criminal history and found that in the prior year he had pleaded guilty to grand larceny in the third degree in connection with a credit card scheme perpetrated against a retail store in New York County. The police also conducted a one-day surveillance of the defendant’s residence but did not observe any illegal activity. Based upon the aforementioned information the search warrant was issued by the Criminal Court, Queens County. During the search of the defendant’s home, no stolen goods or forged or altered credit cards were found but the police discovered a .45 caliber pistol and a .22 caliber rifle which the defendant admitted were unlicensed and unregistered. Follow [194] ing the denial of the defendant’s motion to controvert the warrant and suppress the evidence and the statements made by him at the time of his arrest, he pleaded guilty to attempted criminal possession of a weapon in the third degree in full satisfaction of the indictment. The defendant argues that the police lacked the requisite degree of probable cause to obtain a warrant to search his residence and therefore the evidence and statements obtained in connection therewith must be suppressed. We agree. As a rule, the probable cause necessary to obtain a search warrant need not be sufficient to sustain a conviction beyond a reasonable doubt but may merely constitute information sufficient to support a reasonable belief that an offense is being committed or that evidence of a crime may be found in a certain place (see, People v McRay, 51 NY2d 594, 602). In situations in which a search warrant application is premised on hearsay information provided by an informant the prosecution must satisfy the two-pronged Aguilar-Spinelli test; namely, (1) that the informant was reliable, and (2) that the informant had an adequate basis of knowledge for the information which he transmitted to the police (see, Spinelli v United States, 393 US 410; Aguilar v Texas, 378 US 108; People v Griminger, 71 NY2d 635; People v Johnson, 66 NY2d 398; People v Landy, 59 NY2d 369). Based on the facts of this case, we conclude that the prosecution failed to establish that the informant was reliable. The informant did not have a previous history as a supplier of accurate information to the police nor were the informant’s statements regarding the defendant given under oath (see, People v Johnson, 66 NY2d 398, 403, supra). Moreover, although the informant’s statements could arguably be considered as a declaration against his penal interest, we disagree with our dissenting colleague’s position that this fact was sufficient to establish the informant’s reliability. The Court of Appeals has recognized that while declarations against an informant’s penal interest give reasonable assurances as to the reliability of the informant’s statements, "[s]uch admissions are not guarantees of truthfulness and they should be accepted only after careful consideration of all the relevant circumstances of the case indicates that there exists a basis for finding reliability” (People v Johnson, supra, at 403-404). At the time the informant herein provided the information to the police regarding the defendant, he was alréady under arrest and had made admissions as to his involvement in a credit card scheme. These circumstances make it apparent [195] that the informant, who was already subject to criminal liability, was seeking to gain favor with the police on his own behalf by implicating the defendant as a supplier of the fraudulent credit cards, and accordingly cast doubt on the informant’s reliability (see, People v Griminger, 71 NY2d 635, supra). Moreover, we conclude that the fact that the information provided by the informant regarding the defendant’s residence, automobile and telephone number were corroborated by independent police investigation did not, in and of itself, constitute a basis for finding that the informant was reliable (see, People v McGriff, 130 AD2d 141). The independent police investigation consisted of merely verifying the ownership of the defendant’s automobile and residence and determining that the defendant had pleaded guilty to a similar offense several months previously. The police investigation did not in any way verify the informant’s allegations that the defendant was in possession of stolen property. This investigation was clearly insufficient to serve to verify the informant’s allegations regarding the defendant (cf., People v Durante, 131 AD2d 499, lv denied 70 NY2d 711). Finally, we find that the informant’s statements did not reflect an adequate basis for his knowledge of the defendant’s criminal activity. The informant merely provided general information regarding the defendant’s residence, automobile and telephone. Notably, the description of the defendant’s residence did not include any specific details such as the layout of the house or the location of stolen property allegedly stored therein (see, People v McGriff, 130 AD2d 141, supra). In view of the foregoing, we conclude that the People failed to meet the Aguilar-Spinelli test and thus, the evidence and statements obtained as a result of the execution of the search warrant must be suppressed. Mollen, P. J., Thompson and Fiber, JJ., concur.