Opinion
2017–01282 Ind. No. 10067/15
03-16-2022
The PEOPLE, etc., respondent, v. Terell FORBES, appellant.
Patricia Pazner, New York, NY (Ava C. Page of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Roni C. Piplani, and Adarna De Frietas of counsel), for respondent.
Patricia Pazner, New York, NY (Ava C. Page of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Roni C. Piplani, and Adarna De Frietas of counsel), for respondent.
COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry Kron, J.), rendered December 19, 2016, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court erred in denying his CPL 30.30 motion may not be reviewed on appeal. The defendant "forfeited his right to claim that he was deprived of a speedy trial under CPL 30.30" upon his plea of guilty ( People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354 ; see People v. Hansen, 95 N.Y.2d 227, 231 n. 3, 715 N.Y.S.2d 369, 738 N.E.2d 773 ; People v. Friscia, 51 N.Y.2d 845, 847, 433 N.Y.S.2d 754, 413 N.E.2d 1168 ). Contrary to the defendant's contention, CPL 30.30(6), which provides that a statutory speedy trial claim "shall be reviewable upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment [was] entered upon a plea of guilty," does not apply to this case so as to permit the defendant to raise his statutory speedy trial claim on appeal (see People v. George, 199 A.D.3d 831, 154 N.Y.S.3d 269 ; People v. Lara–Medina, 195 A.D.3d 542, 145 N.Y.S.3d 804 ; People v. Duggins, 192 A.D.3d 191, 140 N.Y.S.3d 317 ). That provision, which did not go into effect until after the defendant entered his plea of guilty and the judgment of conviction was rendered, does not apply retroactively (see People v. George, 199 A.D.3d 831, 154 N.Y.S.3d 269 ; People v. Lara–Medina, 195 A.D.3d 542, 145 N.Y.S.3d 804 ; People v. Duggins, 192 A.D.3d 191, 140 N.Y.S.3d 317 ).
The Supreme Court properly denied the defendant's motion to controvert the search warrant. When an application for a search warrant relies on information provided by an undisclosed informant, it must meet the Aguilar -Spinelli two-prong test (see Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 ; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 ). "It must demonstrate to the issuing Magistrate (i) the veracity or reliability of the source of the information, and (ii) the basis of the informant's knowledge based on some minimum, reasonable showing" ( People v. Ryan, 191 A.D.2d 473, 474, 594 N.Y.S.2d 280 [internal quotation marks omitted]; see People v. Griminger, 71 N.Y.2d 635, 639, 529 N.Y.S.2d 55, 524 N.E.2d 409 ). "Although great deference is accorded to a Judge's determination that probable cause existed, and the application for the warrant must be read in a common sense and realistic manner, courts should not blithely accept as true the accusations of an informant unless some good reason for doing so has been established" ( People v. Ryan, 191 A.D.2d at 474, 594 N.Y.S.2d 280 [citations and internal quotation marks omitted]; see People v. Rodriguez, 52 N.Y.2d 483, 438 N.Y.S.2d 754, 420 N.E.2d 946 ). "Thus, before the police can act upon the informant's [information], they must be prepared to demonstrate that they had good reason to believe that this particular informant was telling the truth" ( People v. Rodriguez, 52 N.Y.2d at 489, 438 N.Y.S.2d 754, 420 N.E.2d 946 ).
Contrary to the defendant's contention, the confidential informant's basis of knowledge was sufficiently established. The information provided by the informant was based on personal observations and knowledge, much of which was corroborated by the warrant applicant's own observations and investigation (see People v. Baptista, 130 A.D.3d 1541, 1541–1542, 13 N.Y.S.3d 759 ; People v. Parker, 256 A.D.2d 362, 362, 681 N.Y.S.2d 767 ; People v. Diaz, 231 A.D.2d 915, 915, 647 N.Y.S.2d 321 ). Moreover, the information provided by the informant was "of such quality, considering its source and the circumstances in which it came into possession of the informant, that a reasonable observer would be warranted in determining that the basis of the informant's knowledge was such that it led logically to the conclusion that a crime had been ... committed" ( People v. Jean–Charles, 226 A.D.2d 395, 396, 640 N.Y.S.2d 266 [internal quotation marks omitted]).
DUFFY, J.P., CHAMBERS, CHRISTOPHER and ZAYAS, JJ., concur.