Opinion
548 KA 22-01882
06-30-2023
The PEOPLE of the State of New York, Respondent, v. Josue BAEZ, Defendant-Appellant.
JEREMY D. SCHWARTZ, LACKAWANNA, FOR DEFENDANT-APPELLANT. JASON L. SCHMIDT, DISTRICT ATTORNEY, MAYVILLE (ERIK D. BENTLEY OF COUNSEL), FOR RESPONDENT.
JEREMY D. SCHWARTZ, LACKAWANNA, FOR DEFENDANT-APPELLANT.
JASON L. SCHMIDT, DISTRICT ATTORNEY, MAYVILLE (ERIK D. BENTLEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, OGDEN, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03 [3] ). We affirm.
We reject defendant's contention that County Court erred in refusing to suppress evidence obtained pursuant to a search warrant for defendant's residence. "[A] search warrant may be issued only upon a showing of probable cause to believe that a crime has occurred, is occurring, or is about to occur ..., and where there is sufficient evidence from which to form a reasonable belief that evidence of the crime may be found inside the location sought to be searched" ( People v. McLaughlin , 193 A.D.3d 1338, 1339, 143 N.Y.S.3d 255 [4th Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 697, 172 N.E.3d 810 [2021] [internal quotation marks omitted]; see People v. Bartholomew , 132 A.D.3d 1279, 1280, 17 N.Y.S.3d 222 [4th Dept. 2015] ). "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" ( People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ).
Here, the factual allegations contained in the two affidavits attached to the warrant application provided probable cause to believe that defendant was operating a drug business out of his residence based on the observations of a confidential informant (CI) and surveillance conducted by the Chautauqua County Sheriff's Office and the Erie County Sheriff's Office (see People v. Ferron , 248 A.D.2d 962, 963, 670 N.Y.S.2d 955 [4th Dept. 1998], lv denied 92 N.Y.2d 879, 678 N.Y.S.2d 26, 700 N.E.2d 564 [1998] ). Contrary to defendant's contention, the reliability of the CI was established by the statement of one of the officers that the CI had given credible and accurate information in the past (see People v. Colon , 192 A.D.3d 1567, 1568, 144 N.Y.S.3d 499 [4th Dept. 2021], lv denied 37 N.Y.3d 955, 147 N.Y.S.3d 535, 536, 170 N.E.3d 409, 410 [2021]; People v. Baptista , 130 A.D.3d 1541, 1542, 13 N.Y.S.3d 759 [4th Dept. 2015], lv denied 27 N.Y.3d 991, 38 N.Y.S.3d 102, 59 N.E.3d 1214 [2016] ; see generally People v. Johnson , 66 N.Y.2d 398, 403, 497 N.Y.S.2d 618, 488 N.E.2d 439 [1985] ). Defendant's further contention that the information on which the search warrant was based was stale is unpreserved for our review (see CPL 470.05 [2] ; Baptista , 130 A.D.3d at 1543, 13 N.Y.S.3d 759 ), and we decline to exercise our power to reach that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).