Opinion
November 21, 1994
Appeal from the County Court, Nassau County (Harrington, J.).
Ordered that the judgment is affirmed.
The defendant contends that the search warrant at issue was not based upon probable cause. We disagree. "In determining the sufficiency of an affidavit in support of a search warrant application, New York courts must apply the Aguilar-Spinelli `two-prong' test in evaluating hearsay information from an informant (see, Aguilar v. Texas, 378 U.S. 108; Spinelli v. United States, 393 U.S. 410) rather than the later-announced Gates `totality of the circumstances' test (Illinois v. Gates, 462 U.S. 213; see, People v. Griminger, 71 N.Y.2d 635). `Under this test, the application for a search warrant must demonstrate to the issuing Magistrate (i) the veracity or reliability of the source of the information, and (ii) the basis of the informant's knowledge' (supra, at 639)" (People v. Naranjo, 174 A.D.2d 546, 548).
Here, the accomplices provided information that was contrary to their own penal interests, as their knowledge was based upon their own involvement with the defendant in the criminal enterprise, and the police additionally observed "`sufficient details corroborative of the informant[s'] data to indicate that [they] knew whereof [they] spoke'" (see, People v. Woolnough, 180 A.D.2d 837, 838, quoting People v. Elwell, 50 N.Y.2d 231, 237). Under these circumstances, the Supreme Court properly held that the affidavit in support of the search warrant application was sufficient (cf., People v. Cassella, 143 A.D.2d 192).
The defendant also contends that the jury verdict acquitting him of seven counts of burglary in the second degree while convicting him of burglary in the first degree and criminal possession of stolen property in the fourth degree was repugnant. We disagree. "`When there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury'" (People v. Feliciano, 187 A.D.2d 448, quoting People v. Tucker, 55 N.Y.2d 1, 4). Here, the material elements of burglary in the first degree and criminal possession of stolen property in the fourth degree, as charged to the jury, were not identical to the material elements of burglary in the second degree. Therefore, the acquittals did not negate an essential element of the counts upon which the defendant was convicted (see, People v. Feliciano, supra).
The court permissibly sentenced the defendant to consecutive terms of imprisonment because the defendant's possession of a weapon in the car and the accomplice's possession of a knife while committing the burglary two blocks away were not a "single act" (Penal Law § 70.25; see, People v. Day, 73 N.Y.2d 208; People v. Brathwaite, 63 N.Y.2d 839).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Miller, J.P., O'Brien, Joy and Krausman, JJ., concur.