Opinion
4725-2018
04-30-2019
The PEOPLE of the State of New York, Plaintiff, v. Israel JUSTINIANO, Brandon Peterson, Defendants.
For the People: Evan Hannay, Kings County District Attorney's Office, 320 Jay Street, Brooklyn, NY 11201 For defendant Justiniano: Julie Schaul, The Legal Aid Society, 111 Livingston Street, Brooklyn, NY 11201 For defendant Peterson: Shirin Zarabi, Brooklyn Defender Services, 177 Livingston Street, Brooklyn, NY 11201
For the People: Evan Hannay, Kings County District Attorney's Office, 320 Jay Street, Brooklyn, NY 11201
For defendant Justiniano: Julie Schaul, The Legal Aid Society, 111 Livingston Street, Brooklyn, NY 11201
For defendant Peterson: Shirin Zarabi, Brooklyn Defender Services, 177 Livingston Street, Brooklyn, NY 11201
Jane C. Tully, J.
The defendants are charged with criminal possession of a weapon in the third degree and other related charges. The charges are based on evidence recovered pursuant to the execution of a search warrant at "6623 Avenue T, Basement Apartment, Brooklyn, New York," where probation officers entered, searched the location, and recovered three firearms and other contraband prior to the issuance of the search warrant. The defendants move to controvert the search warrant and suppress the physical evidence seized. In doing so, the defendants argue that the probation officers illegally entered and searched the location, and thereby acted as a conduit for the police to circumvent the search warrant requirement.
The Court ordered an evidentiary hearing to resolve the narrow issue of the legality of the entry into the location prior to the issuance of the search warrant .
The decision will not address matters that were not the subject of this hearing or matters that do not relate to the motion to controvert the search warrant. Nor will the Court consider any exhibits that were not introduced as evidence during the hearing, which are outside of the record.
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At the hearing, the People called Probation Officer Joubert Garnier and Sergeant William Gaspari as witnesses. The defendant Peterson called Police Officer Triston Trunk as a witness.
Following a review of the pertinent court file, the unredacted search warrant affidavit, the submissions of the parties, the relevant case law, and the testimony adduced at the hearing, the defendants' motion to controvert the search warrant and suppress the physical evidence seized is DENIED.
Testimony at the hearing
Probation Officer Garnier
Probation Officer Garnier has been with the New York City Department of Probation for 28 years and is currently assigned to the Intelligence Unit. As a member of the Intelligence Unit, Probation Officer Garnier does not supervisor individual probationers; rather his role is to investigate alleged violations of probation. The Intelligence Unit is a field unit that receives referrals from different branches within the probation department to conduct investigations and execute warrants. Probation Officer Garnier testified that referrals from the New York Police Department (NYPD) with information regarding a probationer go directly to the branch chief, who assigns the case to a supervisor within the Intelligence Unit, and that supervisor, in turn, assigns the case to an individual probation officer to conduct the investigation.
On June 22, 2018, Probation Officer Garnier received an assignment from his supervisor to conduct a home visit of probationer Peterson's residence at 6623 Avenue T in Brooklyn, based on information from the NYPD that Peterson possessed guns and drugs in his home. Probation Officer Garnier confirmed that Peterson's probation agreement contains a search provision, which allows the department of probation to search his residence. Peterson's probation agreement also contains a provision prohibiting him from possessing firearms. Probation Officer Garnier testified that the department of probation treats referrals that deal with weapons or guns as a priority because, "our job is to make sure that we protect the community, and we have to go out on that right away." Probation Officer Garnier testified that whenever a case is assigned to him that originated by way of information supplied by the NYPD, he contacts the police officer to get supplemental information and to notify the police officer if the department of probation decides to visit the home to investigate. He testified that he notifies the NYPD of certain home visits for safety reasons. Probation Officer Garnier testified that the NYPD is not involved in setting up the department of probation investigations and that the NYPD cannot command the department of probation to investigate a case. Probation Officer Garnier testified that he assembled a team to conduct a home visit and to search Peterson's residence on June 22, 2018. The NYPD was not involved in planning the details of the home visit and his team did not include any members of the NYPD. Probation Officer Garnier contacted Sergeant Gaspari for the first time on June 22, 2018. Probation Officer Garnier stated that once the department of probation receives information that a probationer is involved in criminality activity, the department of probation verifies the details to investigate. Probation Officer Garnier testified that Sergeant Gaspari informed him that Sergeant Gaspari received information that Peterson "possibly" had guns and drugs in his residence. Probation Officer Garnier testified that the possession of firearms or drugs would constitute a violation of Peterson's probation agreement. Probation Officer Garnier told Sergeant Gaspari that the department of probation would be conducting a home visit of the location, and asked Sergeant Gaspari whether members of the NYPD wanted to accompany the department of probation. Probation Officer Garnier informed Sergeant Gaspari that members of the NYPD had to remain outside the location during the search. Probation Officer Garnier testified that he had never met or spoken with Sergeant Gaspari prior to June 22, 2018, and Probation Officer Garnier did not speak with anyone else within the NYPD about searching Peterson's residence. Probation Officer Garnier testified that he was not aware that Peterson had any warrants or prior probation violations.
Probation Officer Garnier testified that he drove to Peterson's residence with other probation officers from the Intelligence Unit. When he arrived at Peterson's residence, Probation Officer Garnier knocked on the door and identified himself as a probation officer, and Peterson allowed the probation officers to enter. The probation officers did not enter Peterson's home with any members of the NYPD. Probation Officer Garnier testified that he showed Peterson a copy of the conditions of his probation, with Peterson's signature, which allowed for the search of his residence, and Peterson acknowledged that he had signed the agreement and acknowledged the search condition. Probation Officer Garnier testified that he spoke with Peterson in the living room, and informed Peterson that the probation officers were there to conduct a home visit and search the location. Probation Officer Garnier asked Peterson whether he had anything that he was not supposed to have, and informed Peterson that he smelled an odor of marijuana. Probation Officer Garnier testified that Peterson admitted to having marijuana. Probation Officer Garnier also asked Peterson whether he had any weapons in the location. Peterson initially denied having a weapon, but when the probation officers entered Peterson's bedroom, Peterson informed Probation Officer Garnier that there may be a weapon in the room that belongs to his brother. The probation officers recovered a 9mm firearm from underneath a bed in the bedroom. Probation Officer Garnier then placed Peterson in handcuffs and entered the bedroom. Members of the NYPD had not entered the location at that point. Probation Officer Garnier conducted a search of the location and recovered a ballistic vest, and another firearm. After finding the second weapon, Probation Officer Garnier informed his supervisor. At that point, members of the NYPD entered Peterson's residence. Probation Officer Garnier testified that he continued to search the location and recovered a third firearm in a closet as well as bullet proof vests. Probation Officer Garnier testified that members of the NYPD did not assist him with the search. Probation Officer Garnier indicated that once the weapons were recovered and members of the NYPD entered the residence, he left the location.
Sergeant Gaspari
Sergeant Gaspari has been with the NYPD for 13 years and was previously assigned to the NYPD's Intelligence Unit, in the 63rd precinct, where he conducted investigations involving the use of a confidential informant (CI) and executed search warrants. Sergeant Gaspari has been involved in about 200 search warrant cases. Sergeant Gaspari testified that in June 2018, he received information from a CI, who had been found reliable in prior investigations, that the defendant Peterson had multiple firearms and narcotics in his home, located at 6623 Avenue T. The CI identified both of the defendants through photographs. Sergeant Gaspari explained that the NYPD took steps to obtain a search warrant for the location. The NYPD conducted surveillance and reconnaissance of the location on June 16, 2018, and June 17, 2018. The NYPD also reviewed records from the department of buildings, contacted the NYPD licensing unit, contacted ConEdison on June 18, 2018, and gained access to the home attached to 6623 Avenue T under the guise of looking for a missing female to determine the layout of the location. Sergeant Gaspari testified that on June 18, 2018, the District Attorney's Office denied the application for the search warrant and requested more information about the layout of the location because the department of buildings listed the location as a two-family home, but a reconnaissance of the location suggested that it was a one-family home. Sergeant Gaspari indicated that although he can ascertain through a computer search that a person is on parole or probation, he does not have access to a parolee's or probationer's terms of agreements. On June 20, 2018, Sergeant Gaspari contacted the department of probation. Sergeant Gaspari testified that he contacted the department of probation to inquire whether anyone from probation had been inside in the location in order to ascertain a layout of the location. Sergeant Gaspari also stated that he wanted to notify the department of probation that he had a CI, who informed him that Peterson, a probationer, may have firearms and drugs in his home. Sergeant Gaspari testified that he notifies the department of parole or probation in every case where the person he is investigating is a parolee or probationer. Sergeant Gaspari testified that a supervisor from the department of probation told him that Peterson had a search condition and informed him that the case would be referred to the Intelligence Unit. Prior to June 2018, Sergeant Gaspari had not been involved in an investigation involving a probationer with a search condition. Sergeant Gaspari testified that he has no authority over the actions of the department of probation. Sergeant Gaspari indicated that after his conversation with the supervisor at the department of probation he attempted to get permission to equip the CI with a recording device so that the CI could enter the location and take a video, in furtherance of his efforts to obtain a search warrant for the location.
On June 22, 2018, Sergeant Gaspari received a phone call from Probation Officer Garnier, who informed him that the department of probation would be conducting a search of 6623 Avenue T and inquired whether Sergeant Gaspari had any information regarding the location. Sergeant Gaspari told Probation Officer Garnier that he was informed by a CI that Peterson had multiple firearms and narcotics inside the location. Sergeant Gaspari testified that prior to that call, he had never spoken to Probation Officer Garnier, and had never accompanied probation officers to a home visit.
Probation Officer Garnier testified that he drove to the location in an unmarked police vehicle with Officer Trunk. Sergeant Gaspari arrived at the location before the probation officers and observed the probation officers enter 6623 Avenue T, while Sergeant Gaspari and Officer Trunk remained outside in the police vehicle. Sergeant Gaspari stated that about 20-25 minutes later, a supervisor from the department of probation informed him that the probation officers had recovered a firearm. Sergeant Gaspari indicated that the supervisor told him to stay in his vehicle. He testified that the supervisor came outside a second time, about 20 minutes later and stated that the probation officers found a second firearm, and Peterson was in handcuffs. The supervisor asked Sergeant Gaspari and Officer Trunk whether they wanted to enter the location. Sergeant Gaspari and Officer Trunk exited their vehicle and entered 6623 Avenue T, Basement Apartment. Sergeant Gaspari testified that he entered the location and observed that Peterson was in handcuffs and seated on a coach in the living room area. Sergeant Gaspari testified that he observed the probation officers continue to search the location and recover a third firearm. After the third firearm was recovered, Sergeant Gaspari froze the location. Sergeant Gaspari testified that at some point the defendant Justiniano arrived at the location. Sergeant Gaspari indicated that other members of the NYPD arrived at the location, while Officer Trunk obtained the search warrant.
Police Officer Trunk
Officer Trunk has been with the NYPD for four and a half years and is currently assigned to the 63rd precinct, Intelligence Unit. Officer Trunk testified that he became involved in this case when he received information from an informant that the defendants possessed guns in their home. Officer Trunk testified that in an effort to obtain a search warrant, the NYPD conducted reconnaissance of the location, spoke with the CI about the layout of the location, contacted ConEdison, and attempted to gain access to the home attached to 6623 Avenue T under the guise of the police looking for a missing female. Officer Trunk testified that on June 22, 2018, the department of probation notified Sergeant Gaspari that probation was doing a home visit at the location. Officer Trunk testified it was routine for the NYPD to act as a backup for safety reasons whenever parole or probation officers conduct home searches. Officer Trunk testified that the NYPD has no authority to direct the department of probation to investigate a case. Officer Trunk testified that no one from the NYPD was involved in setting up the home visit on June 22, 2018. Officer Trunk testified that it is his duty as a police officer to notify the department of probation if he has information that a probationer is in possession of firearms, in violation of the conditions of probation.
Officer Trunk testified that on June 22, 2018, he traveled with Sergeant Gaspari to a school a few blocks from the location and met with at least four probation officers. Officer Trunk testified that while the probation officers entered the location to conduct the search, he and Sergeant Gaspari parked a few blocks away from the location. At some point, Sergeant Gaspari received a call from a probation officer and was notified that firearms were recovered in the location. Officer Trunk testified that he entered the location through the living room, and then entered the bedroom, where he observed two firearms and marijuana that the probation officers had recovered prior to his entry. Officer Trunk testified the probation officers recovered a third firearm, while he was in the location. Officer Trunk testified that the probation officers recovered all three firearms, and after the probation officers completed the search, he froze the location to apply for a search warrant. Officer Trunk testified that he was in the location for about 15 minutes, before leaving to obtain a search warrant. Officer Trunk returned to the location with a search warrant and conducted a search of the location.
The Search Warrant
The search warrant was issued on January 22, 2018, by the Honorable Suzanne Mondo, based upon an affidavit of Officer Trunk. The affidavit recited Officer Trunk's training and experience in the identification of narcotics and firearms, and arrests that led to the recovery of said items, as well as his prior experience executing search warrants. The affidavit stated that Officer Trunk had personally been to the subject location and described his knowledge and observations of the location to be searched. The affidavit indicated that Officer Trunk was informed by Probation Officer Garnier, that on June 22, 2018, at 1:00 pm, Probation Officer Garnier, along with other members of the probation department conducted a home visit of probationer Brandon Peterson, pursuant to a probation agreement signed by Mr. Peterson. The affidavit stated that upon entering the location, Probation Officer Garnier handcuffed Mr. Peterson, and searched Mr. Peterson's bedroom, where Probation Officer Garnier observed a silver pistol underneath Mr. Peterson's bed, and another silver pistol on a shelf inside the room. Probation Officer Garnier informed the police of the recovery of the firearms, and Officer Trunk entered the location and observed the firearms, and a quantity of marijuana. Members of the NYPD secured the location, while Officer Trunk applied for the search warrant herein.
Entry into the location prior to the issuance of the search warrant
Although probationers and parolees have a constitutional right to be free from unreasonable searches and seizures, for purposes of determining reasonableness of a search, "a defendant on probation does not stand in the same constitutional shoes as someone entirely free of judicial supervision and control" ( People v. Hale , 93 NY2d 454, 459 [1999] ). The status of a probationer or parolee is relevant and may be critical in evaluating the reasonableness of a particular search or seizure (see People v. McMillan , 29 NY3d 145, 148-149 [2017] ). A probationer's right to be free from unreasonable searches and seizures is not violated if a probation officer conducts a warrantless search that is "rationally and reasonably related to the performance" of the probation officer's duty ( People v. Huntley , 43 NY2d 175, 181[1977] ; see People v. McMillian , 29 NY3d at 148 ). However, the status of a probationer "ought not to be exploited to allow a search which is designed solely to collect contraband or evidence in aid of the prosecution of an independent criminal investigation" ( People v. Candelaria , 63 AD2d 85, 90 [1st Dept 1978] ). Thus, probation officers cannot act as agents for the police or as "a conduit for doing what the police could not do otherwise" ( People v. Escalera , 121 AD3d 1519, 1520 [4th Dept 2011] ; see People v. Candelaria , 63 AD2d at 90 ] ).
Searches of a parolee's or a probationer's home have been found unreasonable when they were conducted to aid police investigations, rather than to ascertain proof of violations of conditions. For example, in People v. Candelaria , 63 AD2d 85, the search of the defendant's apartment was designed to uncover evidence relating to a homicide; the police detective was investigating the defendant for a homicide and contacted the department of parole and inquired whether the defendant could be arrested for a parole violation. At the parole officer's direction, the detective produced a witness who had observed the defendant during a knife incident, which was not related to the homicide. On that basis, parole officers and the detective entered the defendant's home, while parole officers searched for a gun, and thereafter recovered evidence of the homicide. In People v. Mackie , 77 AD2d 778 (4th Dept 1980), the parole search of a parolee's residence was conducted by parole officer in aid of a police rape investigation; the parole officer heard that a rape had occurred and offered to assist the police by visiting several parolees in the area in search of evidence to the rape. In that case, there was no suggestion that the defendant was involved in the rape or that he was suspected of having violated his parole or having committed any other crime. In People v. Hill , 2002 WL 88977 (App Term, 2d & 11th Jud Dist. 2002), the search of the parolee's residence was conducted as part of a "special operation" to obtain evidence in a broad criminal investigation.
On the other hand, in People v. Clark , 167 AD3d 1035 (2d Dept 2018), the search of the parolee's bedroom was "rationally and reasonably related" to the parole officers' duty to detect and prevent parole violations for the protection of the public from the commission of further crimes and to prevent violations of parole, where the parole officers received a tip that the defendant kept drugs and weapons at the location, and that he was selling drugs on the street. In People v. Purnell , 166 AD3d 814 (2d Dept 2018), the search of the defendant's apartment was "rationally and reasonably related" to the parole officer's performance, where the parole officer was informed by a police detective that the police department had arrested someone who informed them that the defendant possessed a gun. In People v. Wheeler , 149 AD3d 1571 (4th Dept 2017), the record supported the determination that the search of the defendant's residence was "rationally and reasonably related to the performance of the parole officer's duty," where the parole officer testified that he searched the defendant's residence for the purpose of determining if defendant was in violation of the conditions of his parole because he "received credible information from law enforcement sources that defendant possessed a [gun] in his" residence. Likewise, in People v. Sapp , 147 AD3d 1532, 1534 (4th Dept 2017), the parole officer testified that he searched the defendant's apartment to determine if the defendant was in violation of the conditions of his parole because he "received credible information from law enforcement sources that defendant possessed a large quantity of cocaine in his" residence. In People v. Escalera , 121 AD3d 1519 (4th Dept 2004), the parole officer testified that she conducted the search because she received credible information from law enforcement that the defendant possessed a large quantity of cocaine in his apartment, which violated his parole conditions, and thus, the search was rationally and reasonably related to the performance of the parole officer's duties.
Similarly, here, the evidence adduced at the hearing supports the determination that the search of Peterson's residence was "rationally and reasonably related," to Probation Officer Garnier's performance of his duties. Sergeant Gaspari informed the department of probation that he received credible information from a CI, who had proven to be reliable in the past, that Peterson, a probationer possessed firearms and drugs in his residence. Based on the information supplied by Sergeant Gaspari to the department of probation, Probation Officer Garnier was assigned the case by a supervisor to investigate the allegations against Peterson, which, if true, would constitute a violation of Peterson's probation conditions. It is of no consequence that the information came from the NYPD and not from a lay person (see e.g. People v. Escalera , 121 AD3d 1519 ; People v. Wheeler , 149 AD3d 1571 ). Probation Officer Garnier testified that the department of probation treats referrals regarding weapons or guns as a priority to protect the community, and on June 22, 2018, without any assistance or input by the NYPD, Probation Officer Garnier assembled a team to conduct a home visit of Peterson's residence based on credible information that Peterson was involved in criminal activity. The evidence does not suggest that Probation Officer Garnier was acting as a conduit for the NYPD or that Probation Officer Garnier was gathering evidence in furtherance of a broader criminal investigation for the police. Probation Officer Garnier testified that he did not speak with anyone from the NYPD prior to June 22, 2018, and that on June 22, 2018, he contacted Sergeant Gaspari to obtain supplemental information to investigate the alleged criminal activity. Although Probation Officer Garnier was not aware that Peterson had any warrants or prior probation violations, Probation Officer Garnier's role as a member of the Intelligence Unit was to ascertain whether Peterson was in fact engaged in criminal activity by possessing firearms and drugs in his home (see People v. Johnson , 54 AD3d 969, 970 [2d Dept 2008] ; People v. Vann , 92 AD3d 702 [2d Dept 2012] ). Therefore, the search of Peterson's residence by Probation Officer Garnier and his team was in furtherance of probation purposes and related to their duties as probation officers. As such, the initial entry and search of the location was lawful.
Even assuming that Sergeant Gaspari intended to circumvent the search warrant requirement, there was no testimony that Sergeant Gaspari relayed his unsuccessful efforts to obtain a search warrant to anyone at the department of probation. There was no testimony that Sergeant Gaspari requested or instructed the department of probation to conduct a search of Peterson's residence. There was no testimony that Sergeant Gaspari requested that the probation department assist the NYPD to gather evidence against the defendants on behalf of the police. Sergeant Gaspari testified that the NYPD continued their efforts to obtain a search warrant by taking further investigatory steps after speaking with the department of probation, and there was no evidence at the hearing that contradicted his testimony. The NYPD was not involved in determining whether the department of probation should investigate the allegations against Peterson. Probation Officer Garnier was acting at the behest of his supervisor to investigate whether Peterson possessed firearm and drugs in his residence, in violation of his probation conditions. Therefore, the record does not support the contention that the search by Probation Officer Garnier and his team was "designed solely to collect contraband or evidence in aid of the prosecution of an independent criminal investigation" ( Candelaria , 63 AD2d at 90 ), and not to ascertain proof of Peterson's alleged violations of probation.
The presence or the assistance of members of the NYPD did not render the search by probation a police operation (see People v. Johnson , 54 AD3d 969, People v. Wheeler 149 AD3d 1571,1572 [4th Dept 2007] ). Probation Officer Garnier, Sergeant Gaspari, and Officer Trunk testified that the police officers accompanied the probation officers to the location for safety reasons. Sergeant Gaspari and Officer Trunk remained outside in a police vehicle while the probation officers entered and searched the location. Sergeant Gaspari and Officer Trunk entered the location after the firearms were discovered by the probation officers and after Peterson had been placed in handcuffs by Probation Officer Garnier. Although Officer Trunk testified that he and Sergeant Gaspari met with the probation officers at a school a few blocks from the location prior to the search, the NYPD played no role in the decision to conduct a home visit on June 22, 2018. The NYPD was not involved in the initial planning. Probation Officer Garnier's team did not include any members of the NYPD. The NYPD did not determine if or when or how the search would occur. The fact that the probation officers might have been cooperating with the police or that the police accompanied the probation officers to the location still did not render the search a police operation (see People v. Andrews , 136 AD3d 596 [1st Dept 2016] ["Although the parole officers were cooperating with the police, who were investigating robberies and had accompanied the parole officers during the search, the parole officers were not acting solely on behalf of the police"] ). Moreover, the fact that police officers may have assisted with the search after the firearms were recovered by obtaining a search warrant to search the remainder of the premises did not render the initial search by the probation officers a police operation (see People v. Nappi , 83 AD3d 1592,1594 [4th Dept 2011] ).
It was clear from the evidence adduced at the hearing that Probation Officer Garnier was not acting solely on behalf of the NYPD but was acting in furtherance of his duties to ascertain whether Peterson was violating his probation conditions by possessing firearms and drugs. Therefore, even assuming that members of the NYPD had been involved in the search itself, the initial entry into the location and search by the probation officers was reasonable and lawful under circumstances (see People v. Purnell , 166 AD3d 814 ] [upheld search for a firearm in parolee's home performed by the defendant's parole officer, other parole officers, and two police detectives, after parole officer was informed by a police detective that the police department had arrested someone who informed them that the defendant possessed a gun]; People v. Lopez , 288 AD2d 70 [1st Dept 2001] [upheld search where parole officers accompanied by police officers lawfully entered the apartment of defendant, a parolee, without a warrant] ). As such, the entry and observations by the police of firearms and contraband in the location, subsequent to the initial entry and search by the probation officers were lawful.
Pursuant to a condition of his probation, the defendant Peterson agreed to a search condition that allows for warrantless searches by probation officers of his home. "By consenting to permit such searches as a condition of his probation, defendant effectively waived any requirement that CPL 410.50 be complied with" ( People v. Fortunato , 50 AD2d 38, 43 [4th Dept 1975] ; see also People v. Hale , 93 NY2d 454 [1999] ). Moreover, the evidence established that the search of the location "was rationally and reasonably related" to the probation officer's duties to detect and prevent violations, pursuant to the conditions of Peterson's probation prohibiting him from possessing guns and drugs (see People v. Huntley , 43 NY2d 175, 182-183 ; People v. Adams , 126 AD3d 1405 [4th Dept 2015] ). The evidence adduced at the hearing further established that the defendant Peterson consented to the search of his residence (see People v. Johnson 54 AD3d 969 ).
Motion to controvert the search warrant
A search warrant is presumed to be valid (see People v. Hanlon , 36 NY2d 549 [1975] ). "Where a search warrant has been secured, the bona fides of the police will be presumed and the subsequent search upheld in a marginal or doubtful case" (Hanlon , at 558). Probable cause exists for the issuance of a search warrant "when there is a reasonable ground of suspicion supported by the facts and circumstances strong enough in themselves to warrant a cautious person in the belief that the law is being violated on the premises to be searched" ( People v. Marshall , 13 NY2d 28, 34 [1963] ). Great deference should be accorded an issuing court's determination of probable cause ( People v. Griminger , 71 NY2d 635 [1988] ). Therefore, this Court's review of the search warrant is limited to determining "whether... the issuing magistrate could have concluded that probable cause existed" for its issuance ( People v. Castillo , 80 NY2d 578 [1992], citing People v. Hendricks , 25 NY2d 129 [1969]. The search warrant was issued based on the first-hand personal observations by Officer Trunk of firearms at the subject location, and, as such, the Aguilar-Spinelli test does not apply here (see People v. Griminger , 71 NY2d 635 [1988] [the Aguilar-Spinelli test evaluates whether hearsay is sufficiently reliable for a finding of probable cause). Having found that the initial entry and search of the location by the probation officers was lawful, the subsequent entry and observations by Officer Trunk were also lawful. Therefore, the search warrant herein was properly issued based on probable cause.
Accordingly, the defendants' motion to controvert the search warrant and suppress the physical evidence recovered is DENIED . The defendants' remaining challenges to the search warrant are likewise DENIED .
The foregoing constitutes the Decision and Order of the Court