Opinion
No. 2005-07938.
February 6, 2007.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered July 13, 2005, convicting him of criminal possession of a dangerous weapon in the first degree, upon his plea of guilty, and imposing sentence.
Rochman Platzer Fallick Sternheim Luca Pearl, LLP, New York, N.Y. (Barry M. Fallick and Jillian S. Harrington of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas S. Burke, and Maria Park of counsel), for respondent.
HOWARD MILLER, J.P. ANITA R. FLORIO MARK C. DILLON DANIEL D. ANGIOLILLO, JJ.
Before: Miller, J.P., Florio, Dillon and Angiolillo, JJ.
Ordered that the judgment is affirmed.
The Supreme Court properly denied, without a hearing, the defendant's motion to controvert the two search warrants issued. The defendant failed to make the necessary substantial preliminary showing that the warrants were based upon affidavits containing false statements made knowingly or intentionally or with reckless disregard for the truth ( see Franks v Delaware, 438 US 154; People v Alfinito, 16 NY2d 181, 186; People v Nouick, 293 AD2d 692). In any event, apart from the challenged statements, the remaining facts presented to the issuing magistrate were sufficient to establish probable cause for the searches ( see People v Tambe, 71 NY2d 492). The defendant's claim that the initial warrant application did not satisfy the Aguilar-Spinelli test ( see Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410) is without merit. The confidential informant appeared before the issuing magistrate, was sworn, and provided information supporting probable cause for the issuance of the search warrant. Under those circumstances, Aguilar-Spinelli is inapplicable ( see People v Taylor, 73 NY2d 683; People v Small, 22 AD3d 509 [2005]; People v Pratt, 266 AD2d 318).