Opinion
June 18, 1990
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the judgment under indictment No. 5910/85 is affirmed; and it is further,
Ordered that the judgment under indictment No. 6141/85, as amended, is modified, on the law, by vacating the provision thereof directing the defendant to make restitution in the amount of $2,000,195; as so modified, the judgment, as amended, is affirmed.
The defendant's contention that the hearing court erred in denying that branch of his motion which was to suppress the physical evidence seized from his apartment pursuant to a search warrant is without merit. The record supports the hearing court's determination that the defendant failed to meet his burden of establishing by a preponderance of the evidence, that the facts stated by the affiant were intentionally, recklessly, or falsely represented (see, Franks v. Delaware, 438 U.S. 154, 165; People v Ingram, 79 A.D.2d 1088). Moreover, although the affiant did not have firsthand knowledge of some of the facts to which he attested, his affidavit makes clear that he obtained his information from an undercover police officer who did have personal knowledge of those facts (see, People v. Petralia, 62 N.Y.2d 47, 51-52; People v. Londono, 148 A.D.2d 753). Thus, the hearing court properly determined that the search warrant was supported by probable cause.
Also without merit is the defendant's contention that the trial court improvidently exercised its discretion in denying his motion for a severance, based upon his allegation that he and his codefendant would proffer inconsistent defenses. Where, as here, the proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant a severance (see, People v. Bornholdt, 33 N.Y.2d 75). We agree with the trial court's determination that the defendant failed to proffer any such cogent reasons (see, People v. Garriga, 159 A.D.2d 634).
While undoubtedly well intentioned, the court's novel method of calculating the sentence of restitution is unauthorized (see, Penal Law § 60.27; United States v. Casamento, 887 F.2d 1141, 1177-1178, cert denied ___ US ___, 110 S Ct 1138).
We have considered the defendant's remaining contentions and find them to be without merit (see, People v. Garriga, 159 A.D.2d 634, supra). Thompson, J.P., Brown, Eiber and Miller, JJ., concur.