Opinion
November 16, 1990
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Doerr, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The hearing court properly denied defendant's motion for a Franks hearing (see, Franks v. Delaware, 438 U.S. 154) because defendant failed to make a "substantial preliminary showing that a false statement was knowingly and intentionally included" in Investigator Fuhrman's affidavit in support of the application for an eavesdropping warrant (People v. Ingram, 79 A.D.2d 1088; see also, People v. Solimine, 18 N.Y.2d 477).
The court did not err in denying defendant's motion for a Darden hearing (see, People v. Darden, 34 N.Y.2d 177) with respect to evidence supplied by secondary confidential informants because, apart from that evidence, sufficient independent evidence existed to establish probable cause for the issuance of the eavesdropping warrant. Further, the information provided by the primary confidential informant satisfied the Aguilar-Spinelli test (see, Aguilar v. Texas, 378 U.S. 108; Spinelli v. United States, 393 U.S. 410).
We reject defendant's contention that the application for the eavesdropping warrant was not supported by a sufficient showing that the police exhausted normal investigative procedures (see, CPL 700.15; 700.20 [2] [d]). Finally, the record reflects that the hearing court reviewed de novo the affidavit presented on the application for the search warrant and found that it sufficiently supported his finding of probable cause. "This independent review under the facts presented is all that is required" (People v. Delgado, 134 A.D.2d 951, lv. denied 71 N.Y.2d 895, citing People v. Fino, 14 N.Y.2d 160, 163).