Opinion
1454 KA 17–00311
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Lester LANAUX, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CRAIG P. SCHLANGER OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CRAIG P. SCHLANGER OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1], [12] ). Contrary to defendant's contention, Supreme Court properly refused to suppress physical evidence seized during the execution of a search warrant for his residence. The court properly determined that the People established the confidential informant's reliability and the basis of the informant's knowledge to satisfy the Aguilar–Spinelli test (see People v. Baptista, 130 A.D.3d 1541, 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] ; People v. Henry, 74 A.D.3d 1860, 1861–1862, 902 N.Y.S.2d 742 [4th Dept. 2010], lv denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010] ; see generally People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ). Defendant further contends that the court erred in determining that there was no search of the home before the warrant was signed. We reject that contention. The court credited testimony from police officers that they opened closet doors only to secure the premises and did not search the residence before obtaining the warrant, and it discredited the testimony of defendant's wife that she heard drawers being opened. "It is well settled that great deference should be given to the determination of the suppression court, which had the opportunity to observe the demeanor of the witnesses and to assess their credibility, and its factual findings should not be disturbed unless clearly erroneous" ( People v. Layou, 134 A.D.3d 1510, 1511, 23 N.Y.S.3d 517 [4th Dept. 2015], lv denied 27 N.Y.3d 1070, 38 N.Y.S.3d 841, 60 N.E.3d 1207 [2016], reconsideration denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ). We see no reason to disturb the court's determination.
Defendant's remaining contentions concerning the validity of the search warrant and the search are not preserved for our review inasmuch as he failed to raise them in his motion papers or at the suppression hearing (see People v. Watkins, 151 A.D.3d 1913, 1913, 57 N.Y.S.3d 841 [4th Dept. 2017], lv denied 30 N.Y.3d 984, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed and the matter is remitted to Supreme Court, Onondaga County, for proceedings pursuant to CPL 460.50(5).