Opinion
58
Decided April 30, 2002.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered May 14, 2001, which (1) reversed, on the law, a judgment of the Westchester County Court (Barbara G. Zambelli, J.), convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree (two counts) and criminal possession of a controlled substance in the fifth degree, (2) granted that brance of defendant's omnibus motion to supress physical evidence, and (3) dismissed the incident.
People v. Farrow, 283 A.D.2d 515, reversed.
Richard Longworth Hecht, for appellant.
David B. Weisfuse, for respondent.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
MEMORANDUM
Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.
The order of the Appellate Division should be reversed and the case remitted to that court for further proceedings in accordance with this memorandum.
On July 14, 1999, a confidential informant told the Mount Vernon Police that a person would conduct a drug transaction near the Mount Vernon Public Library. As a result of that conversation, the police went to the location. One police officer observed defendant, who fit the description given by the confidential informant. The officer observed defendant reach inside his pants and remove two pinkish translucent bags. These bags appeared to contain a white chunky substance and did, in fact, contain crack cocaine. The police subsequently arrested defendant and, after searching him, charged him with criminal possession of a controlled substance and criminal possession of a weapon.
Defendant moved to suppress the gun and drugs. In their written response, the People stated that they had probable cause to arrest the defendant based on the information received from the confidential informant and the observation of the police officer. The People also stated that a Darden (People v. Darden, 34 N.Y.2d 177) hearing should be held. The People, however, could not produce the confidential informant at the hearing on the motion to suppress evidence. They argued then, as they do now, that probable cause could be established independent of the confidential informant. The Trial Court denied the motion to suppress, holding that "a Darden hearing was unnecessary since probable cause existed without the information from the confidential informant." The Appellate Division reversed, holding that, for probable cause to be established, it is necessary to produce the confidential informant.
In People v. Darden, a confidential informant told the police that a large shipment of heroin would arrive in Rochester from New York City. The police arrested a carrier when he arrived at the Rochester Monroe County airport carrying an attache case, on a flight from New York City. While there were drugs in the attache case, the testimony of the confidential informant was necessary to establish probable cause. This Court stated, "where there is insufficient evidence to establish probable cause apart from the testimony of the arresting officer as to communications received from an informant, when the issue of identity of the informant is raised at the suppression hearing" (id. at 181), the suppression Judge is required to hold a hearing.
In People v. Adrion ( 82 N.Y.2d 628), a confidential informant told the police that stolen luggage could be found in a specific location. A police officer went to that location, saw boxes and arrested the defendant. Because the People could not establish probable cause without the testimony of the confidential informant, this Court reversed the reinstatement of the prosecution by the Appellate Division. The case before us stands in contrast to Darden and Adrion.
The Appellate Division erred in stating that a Darden hearing was necessary. Here probable cause could be established by the independent observations of the police officer. We, therefore, reverse and remit to the Appellate Division for further proceedings in accordance with this memorandum.
Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.