Opinion
2021-06884
12-09-2021
The People of the State of New York, Respondent, v. Damien M. High, Appellant.
Aaron A. Louridas, Delmar, for appellant. Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.
Calendar Date: October 19, 2021
Aaron A. Louridas, Delmar, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Reynolds Fitzgerald and Colangelo, JJ.
GARRY, P.J.
Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered September 25, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree (two counts).
Defendant was charged by indictment with two counts of criminal possession of a controlled substance in the third degree based on the recovery of crack cocaine from just outside of his residence during the execution of a search warrant. The warrant was premised upon information provided by a confidential informant (hereinafter CI). Defendant challenged the reliability of the information underlying the search warrant and the admissibility of certain of his statements to law enforcement. Following Darden and Huntley hearings, respectively, County Court found the information sufficiently reliable and the statements admissible. Defendant thereafter entered into a plea agreement, pleading guilty as charged with a promise of a maximum prison term of five years with three years of postrelease supervision. County Court ultimately imposed concurrent prison terms of four years, followed by three years of postrelease supervision. Defendant appeals.
Defendant argues that County Court erred in finding that probable cause supported the search warrant, as the CI who provided the underlying information was not shown to be reliable or trustworthy. Here, "the warrant application [was] supported by the sworn affidavit of an informant whose identity [was] disclosed to the issuing [j]udge" (People v David, 234 A.D.2d 787, 787-788 [1996], lv denied 89 N.Y.2d 1034 [1997]; see People v Shoga, 89 A.D.3d 1225, 1230 [2011], lv denied 18 N.Y.3d 886 [2012]). "A sworn statement of an identified member of the community attesting to facts directly and personally observed by him [or her] is in and of itself sufficient to support the issuance of a search warrant" (People v David, 234 A.D.2d at 788 [citations omitted]; see People v Hicks, 38 N.Y.2d 90, 93 [1975]; People v Cowan, 177 A.D.3d 1173, 1174-1175 [2019], lv denied 34 N.Y.3d 1127 [2020]). As the CI's identity was made known, in camera, to the issuing court and the statement was a firsthand account made under penalty of perjury, probable cause can be established without further need for "demonstrat[ing] the veracity and/or reliability of the CI and the basis of the CI's knowledge" (People v Oliver, 172 A.D.3d 1457, 1459 [2019], lv denied 34 N.Y.3d 1080 [2019]; see People v Cowan, 177 A.D.3d at 1175).
County Court's credibility determinations relative to the Darden hearing "are accorded deference on appeal, and will not be disturbed unless they are not supported by the record" (People v Nettles, 186 A.D.3d 861, 863 [2020]; see People v Binion, 100 A.D.3d 1514, 1515 [2012], lv denied 21 N.Y.3d 911 [2013]), and any minor discrepancies between the sworn statement underlying the search warrant application and the testimony at the Darden hearing a year later do not undermine the validity of the search warrant. Upon review, the Darden hearing transcript demonstrates that the CI's communications established probable cause (see People v Shoga, 89 A.D.3d at 1230; People v Lowe, 50 A.D.3d 516, 516 [2008], affd 12 N.Y.3d 768 [2009]), and thus, County Court properly denied defendant's request to suppress the cocaine.
As to the statements defendant made at the time of his arrest and at the police station thereafter, "[o]n a motion to suppress, the People bear the burden of proving beyond a reasonable doubt that the defendant's statement[s] to police [were] voluntarily given, including that any custodial interrogation was preceded by the administration and the defendant's knowing waiver of his or her Miranda rights" (People v Garrand, 189 A.D.3d 1763, 1767 [2020] [internal quotation marks, brackets and citations omitted], lv denied 36 N.Y.3d 1120 [2021]; see CPL 60.45; People v Muller, 155 A.D.3d 1091, 1092 [2017], lv denied 30 N.Y.3d 1118 [2018]) and "were not the product of unduly coercive or deceptive police conduct" (People v Scaringe, 137 A.D.3d 1409, 1412 [2016], lv denied 28 N.Y.3d 936 [2016]; see People v Jin Cheng Lin, 26 N.Y.3d 701, 719 [2016]). "Determining whether a statement is voluntary is a factual issue governed by the totality of the circumstances and the credibility assessments of the suppression court in making that determination are entitled to deference" (People v Butcher, 192 A.D.3d 1196, 1197 [2021] [internal quotation marks and citation omitted], lv denied 36 N.Y.3d 1118 [2021]; see People v Garrand, 189 A.D.3d at 1768). "Once the People have met their burden, the burden of persuasion shifts to the defendant to adduce evidence supporting his or her contention that he or she did not comprehend his or her rights" (People v Garrand, 189 A.D.3d at 1768 [internal quotation marks, brackets and citation omitted]; see People v Newell, 148 A.D.3d 1216, 1218 [2017], lv denied 29 N.Y.3d 1035 [2017]).
Here, the arresting officer testified that he issued Miranda warnings to defendant at the time of his arrest, prior to any inculpatory statements, and that defendant acknowledged that he understood his rights and voluntarily waived them. The officer reminded defendant that those warnings still applied at the police station roughly an hour later, before further inculpatory statements were made; defendant again acknowledged his understanding and agreed to speak with the police. The officer denied making any promise to defendant in exchange for his cooperation. Defendant presented no evidence contradicting this version of events. County Court credited the officer's testimony, and we accord deference to that finding (see People v Vazquez, 145 A.D.3d 1268, 1270 [2016]; People v Nadal, 131 A.D.3d 729, 730 [2015], lv denied 26 N.Y.3d 1041 [2015]; People v Cline, 192 A.D.2d 957, 958 [1993], lv denied 81 N.Y.2d 1071 [1993]). Further, the mere presence of defendant's goddaughter and her children during the arrest and ensuing search did not create a substantial risk that defendant might falsely incriminate himself (see People v Mateo, 2 N.Y.3d 383, 415-416 [2004], cert denied 542 U.S. 946 [2004]; People v Cavallaro, 123 A.D.3d 1221, 1223 [2014]; People v Johnson, 177 A.D.2d 791, 792 [1991]). County Court did not err in declining to suppress defendant's statements to the police (see People v Nadal, 131 A.D.3d at 730; People v Cavallaro, 123 A.D.3d at 1223).
Finally, defendant contends that the sentence imposed was harsh and excessive. However, the sentence was consistent with the plea agreement and well below the statutory maximum term. We find no extraordinary circumstances here warranting a reduction of the sentence in the interest of justice (see People v Alolafi, 170 A.D.3d 1379, 1380 [2019]).
Lynch, Clark, Reynolds Fitzgerald and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.