People v Berry (2025 NY Slip Op 06358)

PROCEDURAL SUMMARY

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of that Court, entered March 14, 2025. The Appellate Division affirmed a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), which had convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree (six counts), criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and criminally using drug paraphernalia in the second degree (three counts).

People v Berry, 236 AD3d 1405, modified.

HEADNOTE

Crimes - Search Warrant - Probable Cause - Statements of Informant

The evidence provided in support of the search warrant for a certain address failed to satisfy the basis of knowledge requirement of the Aguilar-Spinelli test as a matter of law in defendant's prosecution. The general allegation that the informant was "aware that narcotics are kept inside the location" provided no indication that the information was based upon personal observation. Likewise, the informant's statement that at some unidentified point in time the informant had conducted a narcotics transaction at that address did not describe defendant's activities with sufficient particularity to warrant an inference of personal knowledge. Nor was the information conveyed by the informant corroborated by police observation.

APPEARANCES OF COUNSEL

Julie A. Cianca, Public Defender, Rochester (Alexander Prieto of counsel), for appellant.

Brian P. Green, District Attorney, Rochester (Aeron Schwallie of counsel), for respondent.

The order of the Appellate Division should be modified by dismissing counts 3, 6, 7, and 8 of the indictment and remitting the case to Supreme Court for resentencing on the remaining counts and, as so modified, affirmed.

On this record, we hold that as a matter of law the evidence provided in support of the 205 Curtis Street search warrant failed to satisfy the basis of knowledge requirement of the Aguilar-Spinelli test (see Aguilar v Texas, 378 US 108 [1964]; Spinelli v United States, 393 US 410 [1969]; People v Bigelow, 66 NY2d 417, 420 [1985]). The general allegation that the informant was "aware that narcotics are kept inside the location" provides no indication "that the information was based upon personal observation" (Bigelow, 66 NY2d at 424). Likewise, the informant's statement that at some unidentified point in time the informant had conducted a narcotics transaction at that address "did not describe defendant's activities with sufficient particularity to warrant an inference of personal knowledge" (id.; see People v Elwell, 50 NY2d 231, 237-242 [1980]). Nor was the information conveyed by the informant corroborated by police observation (see Elwell, 50 NY2d at 237). Accordingly, the informant's statements fail to meet the requirements of Aguilar-Spinelli and, because there are no other allegations in the search warrant affidavit to establish "a {**44 NY3d at 1093}reasonable belief that an offense has been or is being committed or that evidence of a crime may" have been found at 205 Curtis Street (Bigelow, 66 NY2d at 423 [citations omitted]), the search warrant for that address was not supported by probable cause, and the evidence seized there should have been suppressed.

Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro, Troutman and Halligan concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR), order modified by dismissing counts 3, 6, 7 and 8 of the indictment and remitting case to Supreme Court, Monroe County, for resentencing on the remaining counts and, as so modified, affirmed, in a memorandum.