Opinion
259 KA 19-01113
04-28-2023
The PEOPLE of the State of New York, Respondent, v. Antoine L. HOWARD, Defendant-Appellant.
JULIE A. CIANCA, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
JULIE A. CIANCA, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, OGDEN, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ). The charge arose from the discovery of 176 bags of heroin in defendant's residence by the police during the execution of a search warrant. As a preliminary matter, we agree with defendant that his purported waiver of the right to appeal is unenforceable because the written waiver form "provided defendant with erroneous information about the scope of the waiver" ( People v. Singletary , 207 A.D.3d 1191, 1191, 169 N.Y.S.3d 861 [4th Dept. 2022], lv denied 38 N.Y.3d 1190, 176 N.Y.S.3d 200, 197 N.E.3d 480 [2022] ), and Supreme Court's oral colloquy did not "cure [the] incorrect language in the written waiver form" ( People v. Thomas , 34 N.Y.3d 545, 563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ).
We nevertheless reject defendant's contention that the search warrant was not issued upon probable cause. "[A] search warrant may be issued only upon a showing of probable cause to believe that a crime has occurred, is occurring, or is about to occur ..., and where there is sufficient evidence from which to form a reasonable belief that evidence of the crime may be found inside the location sought to be searched" ( People v. McLaughlin , 193 A.D.3d 1338, 1339, 143 N.Y.S.3d 255 [4th Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 697, 172 N.E.3d 810 [2021] [internal quotation marks omitted]; see People v. Bartholomew , 132 A.D.3d 1279, 1280, 17 N.Y.S.3d 222 [4th Dept. 2015] ). "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" ( People v. Bigelow , 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ).
Here, in an affidavit submitted in support of the warrant application, a police investigator stated that a confidential informant with whom he had been working made seven controlled buys of narcotics from defendant. The first five controlled buys took place inside defendant's residence, while the last two occurred at a different location to which defendant directed the informant during a telephone conversation overheard by the police. Although the transactions inside defendant's residence occurred more than a year before issuance of the warrant, "the remaining information in the application was sufficient to establish probable cause to believe that evidence of a crime might be found in defendant's residence" ( People v. Mothersell , 204 A.D.3d 1403, 1404, 166 N.Y.S.3d 794 [4th Dept. 2022] ). The last two controlled buys occurred within two weeks prior to the issuance of the warrant, and the police executed the warrant two days after such issuance. Although those two transactions, unlike the others, did not take place inside defendant's home, the investigator alleged that defendant, who was under police surveillance, left his home shortly after speaking on the phone with the informant and drove directly to the parking lot where he told the informant to meet him. After selling heroin to the informant, defendant drove back to his home. Under the circumstances, it was more probable than not that defendant kept drugs in his home. "Affording great deference to the determination of the issuing Magistrate and reviewing the application in a common-sense and realistic fashion" ( People v. Humphrey , 202 A.D.3d 1451, 1451, 158 N.Y.S.3d 907 [4th Dept. 2022], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 474, 185 N.E.3d 995 [2022] [internal quotation marks omitted]), we conclude that the search warrant was issued upon probable cause.
We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.