In this proceeding where the defendant has been charged with criminal possession of a controlled substance in the seventh degree, the defendant moves to unseal the search warrant affidavit, or in the alternative to controvert the warrant, and for a Sandoval hearing. The People consent to a Sandoval hearing but oppose the motion to unseal the warrant.

The defendant was arrested after officers of the Mount Vernon police department executed a search warrant at 403 South 9th Avenue, Apt. B in Mount Vernon where he was present, and recovered a quantity of cocaine. The information supporting the warrant application, contained in the affidavit of Police Officer Fegan of the Mount Vernon Police Department, was provided by a confidential informant. The People oppose the disclosure of the warrant affidavit on the ground that its disclosure would jeopardize the safety of the confidential informant.

In People v Castillo (80 NY2d 578, 586 (1992)) the Court of Appeals set forth guidelines based upon the four step procedure outlined in People v Seychel (136 Misc 2d 310) to be followed in determining whether to disclose an informant's identity or statements contained in a search warrant affidavit where the People contend that such disclosure would jeopardize the safety of the informant. First, a review of the search warrant is necessary to determine whether it alleges probable cause, or whether there is any reason to believe it is perjurious. Second, if the affidavit appears to be supported by probable cause, the Court should then determine whether the informant's life and/or future investigations would be jeopardized by disclosure. Third, if confidentiality is deemed necessary, the Court should then make an attempt to redact portions of the affidavit to conceal the informant's identity, if possible. Fourth, if redaction is impossible, the Court may order the People to produce the informant for a Darden-type inquiry to evaluate the informant's credibility.

Turning to the facts of this case in light of the standards set forth in Castillo, this Court finds, upon an in camera examination of the warrant, that it was supported by probable cause. When an application for a search warrant relies on information provided by a confidential informant, it must meet the Aguilar-Spinelli two-pronged test (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410). Under this test, the application for the warrant must demonstrate to the issuing Judge i) the reliability of the informant, and ii) the basis of the informant's knowledge (People v Griminger, 71 NY2d 635, 639 (1988); People v Williams, 191 [*2]AD2d 473 (2d Dept 1993)). Factors which may be relied upon to establish an informant's reliability include past instances of reliability, that the informant provided the information under oath, that the information provided was contrary to the informant's penal interest (see People v Johnson, 66 NY2d 398, 403-404 (1985)), and "personal observation by the police of sufficient details corroborative of the informant's data to indicate that he knew whereof he spoke" (People v Elwell, 50 NY2d 231, 237 (1980)).

Here, the warrant application contained information that the informant was reliable, since the officer's affidavit set forth a history of success with this informant (See People v Martinez, 80 NY2d 549 (1992); People v Cassella, 143 AD2d 192, 194 (2d Dept 1988)). The informant's basis of knowledge was also established since the warrant application states that (s)he personally purchased cocaine from the target of the warrant at the apartment in question. Under these circumstances, the Aguilar-Spinelli test was met, and the Court therefore finds that the warrant was issued based on probable cause.

Further, based upon this Court's in camera examination of the search warrant affidavit, along with the People's papers in opposition, the need for continued confidentiality of the informant has been clearly demonstrated. A redaction of the affidavit cannot be accomplished without substantial risk of harm to the informant and/or subsequent investigations. The People's motion for a protective order is granted to the extent that the search warrant affidavit shall remain sealed.

However, in consideration of the defendant's request, a Darden-type inquiry will be held to confirm the existence and assess the credibility of the confidential informant, and to assure that the ongoing confidentiality of the informant's identity and statements is required. The hearing is to be scheduled by the District Attorney. The defendant is to submit written questions by October 11, 2007.

The motion for a Sandoval hearing is granted, and shall be renewed before the trial Judge.

This constitutes the Decision and Order of the Court.

Dated:September 27, 2007

Mount Vernon, New York

_______________________________HON. ADAM SEIDEN

Associate City Judge of Mount Vernon

To:Westchester County District Attorney

Mount Vernon branch

Susan M. Capeci, Esq.

Attorney for Defendant [*3]

559 Gramatan Avenue, Suite 209

Mount Vernon, New York 10552