Opinion
KA 02-02474.
December 31, 2003.
Appeal from a judgment of Erie County Court (Drury, J.), entered March 20, 2002, convicting defendant after a jury trial of, inter alia, criminal possession of a controlled substance in the fifth degree.
LOREN D. LOBBAN, BUFFALO, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (MARCY H. HAGEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, WISNER, HURLBUTT, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06); criminal mischief in the fourth degree (§ 145.00 [3]); obstructing governmental administration in the second degree (§ 195.05); reckless driving (Vehicle and Traffic Law § 1212); and two counts of failure to stop at a stop sign (§ 1172 [a]). We reject the contentions of defendant that the search warrant issued for his person and the vehicle he was operating failed to identify the person and vehicle to be searched and that the warrant was not issued upon probable cause. The police detective's sworn application fully described the vehicle based on information furnished to the detective by the informant, and the informant appeared before the issuing Magistrate and was questioned under oath with specific reference to the subject vehicle and its occupant. Further, "the reliability prong of the Aguilar-Spinelli test * * * does not apply in cases of sworn oral testimony, where the issuing Magistrate can evaluate veracity to determine whether probable cause exists" ( People v. Drake, 178 A.D.2d 929, 929; see People v. Pratt, 266 A.D.2d 318, lv denied 94 N.Y.2d 879, 883; People v. Stewart, 159 A.D.2d 971; see also People v. Taylor, 73 N.Y.2d 683, 688). We have reviewed defendant's remaining contention and conclude that it is without merit.