Opinion
93 KA 21-00341
02-04-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JAMES HUMPHREY, DEFENDANT-APPELLANT.
RONALD S. NIR, KEW GARDENS, FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
RONALD S. NIR, KEW GARDENS, FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, AND WINSLOW, JJ.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), rendered August 28, 2020. The judgment convicted defendant upon a plea of guilty of criminal possession of a controlled substance in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), defendant contends that County Court erred in refusing to suppress physical evidence seized from defendant's residence during the execution of a search warrant. We reject that contention.
"It is well settled that 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 Moxley, 137 A.D.3d 1655, 1656 [4th Dept 2016], citing People v Mercado, 68 N.Y.2d 874, 875-876 [1986], cert denied 479 U.S. 1095 [1987], and People v Bigelow, 66 N.Y.2d 417, 423 [1985]). "Affording great deference to the determination of the issuing Magistrate and reviewing the application 'in a common-sense and realistic fashion'" (People v Park, 266 A.D.2d 913, 913 [4th Dept 1999]), we conclude that the search warrant was supported by probable cause.
Relying on the information obtained from an anonymous source, law enforcement officials lawfully secured multiple bags of garbage from a garbage tote at the end of a driveway on two occasions (see People v Ramirez-Portoreal, 88 N.Y.2d 99, 112-113 [1996]; People v Crump, 125 A.D.3d 999, 1000 [2d Dept 2015], lv denied 25 N.Y.3d 1162 [2015], cert denied 577 U.S. 978 [2015]; People v Harris, 83 A.D.3d 1220, 1221-1222 [3d Dept 2011], lv denied 17 N.Y.3d 817 [2011]). At the time of each "trash pull," defendant's vehicle was in the driveway. In multiple bags, white residue and narcotics packaging materials were found. The residue taken from the bags secured on both dates was field-tested and yielded a positive reaction for the presence of cocaine. In addition, evidence obtained as a result of those "trash pulls" linked defendant to that address. Even assuming, arguendo, that the information obtained from the anonymous source was not reliable, we conclude that "the evidence in defendant's trash of illegal activity, even standing alone, was sufficient to support a reasonable belief that drugs and/or evidence of drug sales might be found in defendant's [residence]" (Harris, 83 A.D.3d at 1222 [emphasis added]; see United States v Leonard, 884 F.3d 730, 734-735 [7th Cir 2018]) and to support the issuance of the search warrant. "While one search turning up [narcotics] in the trash might be a fluke, two indicate a trend. Whether it be a particularly large quantity of drugs... or multiple positive tests of different trash pulls within a fairly short time, both tend to 'suggest[ ] repeated and ongoing drug activity in the residence'" (Leonard, 884 F.3d at 734, quoting United States v Abernathy, 843 F.3d 243, 255 [6th Cir 2016]).
Although defendant also contends that his plea should be vacated because he was not provided an official laboratory report regarding the narcotics seized from his residence before he entered his plea, it is well settled that a defendant, after pleading guilty, forfeits his or her "right to challenge the sufficiency of the evidence supporting the indictment" (People v Ocejo, 202 A.D.2d 523, 523 [2d Dept 1994], lv denied 83 N.Y.2d 1006 [1994]; see generally People v Suber, 19 N.Y.3d 247, 250 [2012]).