Opinion
December 22, 1986
Appeal from the County Court, Nassau County (Thorp, J.).
Ordered that the judgments are affirmed.
On September 7, 1984, an eavesdropping warrant was issued authorizing a wiretap on the defendant's home telephone. The affidavit supporting the warrant application had been signed by Police Officer Joseph Sanguedolce. In the affidavit, Sanguedolce stated, among other things, that he had been informed by Special Agent John Keenan of the FBI that a confidential informant, whom Keenan declined to identify but who had given reliable information in the past, had stated that the defendant was "doing" heroin and cocaine, that he used the telephone extensively to discuss drug transactions and that the informant had overheard some of these communications while at the defendant's home.
In the defendant's motion to suppress the evidence obtained through use of the wiretap, he did not challenge the veracity of Sanguedolce but did challenge the truthfulness of the information given him, alleging that the informant either did not exist or could not possibly have overheard discussions of illegal drug transactions. The motion was supported by affidavits from the defendant and his wife which stated, in substance, that the defendant never used his telephone to conduct any illegal business and therefore no one could possibly have overheard conversations relating to such activity. The court denied the defendant's motion, without a hearing, holding, consistent with several rulings of the Court of Appeals, that the defendant was not entitled to a hearing because his challenge was not directed toward the veracity of the affiant (see, People v. Slaughter, 37 N.Y.2d 596; People v. Solimine, 18 N.Y.2d 477).
The defendant now contends that he is entitled to a hearing where, as here, the source of the affiant's information is another governmental agent and the challenge is directed toward the veracity of the officer who supplied the information to the affiant (see, United States v. Pritchard, 745 F.2d 1112; United States v. Dorfman, 542 F. Supp. 345, affd 690 F.2d 1217; cf. People v. Ward, 95 A.D.2d 233).
Even if we were inclined to adopt the rule urged by the defendant, we would still conclude that the court's determination denying the motion without a hearing was correct. As the Supreme Court stated in Franks v. Delaware ( 438 U.S. 154, 171), the defendant's attack must consist of more than conclusory allegations. Instead: "There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained" (p 171).
The affidavits submitted by the defendant did not meet this standard but merely denied, in conclusory fashion, the allegations in Sanguedolce's affidavit. They were, therefore, insufficient to require a hearing (see, United States v. Reed, 726 F.2d 339; People v. Coleman, 91 Ill. App.3d 646, 415 N.E.2d 553).
We have concluded that the assistance of counsel received by the defendant constituted "meaningful representation" and reversal on that basis is not required (see, People v Satterfield, 66 N.Y.2d 796; People v. Baldi, 54 N.Y.2d 137).
The defendant's remaining arguments are either unpreserved or without merit. Weinstein, J.P., Rubin, Kooper and Sullivan, JJ., concur.