Opinion
March 16, 1990
Appeal from the Supreme Court, Onondaga County, Gorman, J.
Present — Dillon, P.J., Boomer, Green, Balio and Davis, JJ.
Order unanimously reversed on the law, defendant's motion to suppress denied and matter remitted to Supreme Court, Onondaga County, for further proceedings, in accordance with the following memorandum: Supreme Court erred in granting defendants' motions to suppress evidence seized pursuant to an eavesdropping warrant. The confidential informant was reliable because he personally dealt with defendants' customers and knew that they purchased cocaine from defendants (see, Draper v United States, 358 U.S. 307). The informant's information was corroborated by information from a pen register on defendants' telephone and by police knowledge that defendants and their customers had criminal backgrounds involving drug-related activities (see, People v Elwell, 50 N.Y.2d 231, 237, 242; People v Gaspar, 132 A.D.2d 990, appeal dismissed 71 N.Y.2d 887). Reading the application in support of the eavesdropping warrant in a common-sense and realistic manner (see, People v Hanlon, 36 N.Y.2d 549, 559) and giving great deference to the determination by the issuing Magistrate (see, People v Griminger, 71 N.Y.2d 635, 640), we conclude that the warrant was supported by probable cause (see, People v Tambe, 71 N.Y.2d 492).
The People established that normal investigative procedures had been tried and failed or that if tried would likely fail (see, CPL 700.20 [d]). The application recited that defendants refused to deal directly with the informant, that the police attempts at physical surveillance were frustrated by defendants' erratic and evasive behavior and that continued surveillance of defendants' home in a residential neighborhood could easily be detected and, in any event, would be unproductive (see, People v Quezada, 145 A.D.2d 950, 951; People v Bavisotto, 120 A.D.2d 985, lv denied 68 N.Y.2d 912, cert denied 480 U.S. 933; People v Baris, 116 A.D.2d 174, lv denied 67 N.Y.2d 1050; People v Carson, 99 A.D.2d 664; cf., People v Viscomi, 113 A.D.2d 76, lv denied 67 N.Y.2d 658).