SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

718 

KA 12-01618 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ANDRE BAPTISTA, DEFENDANT-APPELLANT.

 

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF

COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Onondaga County

(John J. Brunetti, A.J.), rendered April 11, 2012. The judgment

convicted defendant, upon his plea of guilty, of criminal possession

of a controlled substance in the third degree and criminal possession

of a controlled substance in the fourth degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal 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]) and criminal possession of a

controlled substance in the fourth degree (§ 220.09 [1]), defendant

contends that the search warrant in question was not issued upon

probable cause and that Supreme Court therefore erred in refusing to

suppress physical evidence seized during the execution of the search

warrant. We reject that contention.

“It is well settled that probable cause may be supplied, in whole

or in part, [by] hearsay information, provided [that] it satisfies the

two-part Aguilar-Spinelli test requiring a showing that the informant

is reliable and has a basis of knowledge for the information imparted”

(People v Flowers, 59 AD3d 1141, 1142 [internal quotation marks

omitted]). Here, defendant does not challenge the confidential

informant’s hearsay information other than to say that the informant’s

reliability or basis of knowledge was not established. We agree with

the People that the confidential informant’s reliability and the basis

of his knowledge was established by evidence of the confidential

informant’s participation in the four controlled buys from defendant

and the confidential informant’s prior participation in over 20 other

investigations (see People v Myhand, 120 AD3d 970, 973-975, lv denied

25 NY3d 952; People v Monroe, 82 AD3d 1674, 1675, lv denied 17 NY3d
-2- 718 

KA 12-01618 

808; Flowers, 59 AD3d at 1142-1143; People v Lee, 303 AD2d 839, 840,

lv denied 100 NY2d 622). We therefore conclude that the People

satisfied both prongs of the Aguilar-Spinelli test. 

Defendant’s contention that he was never identified in the

warrant application is not preserved for our review (see generally

People v Fuentes, 52 AD3d 1297, 1298, lv denied 11 NY3d 736), and we

decline to exercise our power to review that contention as a matter of

discretion in the interest of justice (see CPL 470.15 [3] [c]).

Contrary to the contention of defendant, the confidential

informant’s single photo identification of defendant was not improper

and did not taint the entire warrant application. The confidential

informant’s photo identification was not offered as “proof sufficient

to warrant a conviction beyond a reasonable doubt,” but it was instead

used simply to determine whether there was “information sufficient to

support a reasonable belief that an offense [had] been or [was] being

committed or that evidence of a crime [could] be found in a certain

place” (People v Bigelow, 66 NY2d 417, 423). Moreover, “[t]he

validity of the warrant is determined based on the information

available at the time it was issued” (People v O’Connor, 242 AD2d 908,

910, lv denied 91 NY2d 895; see People v Nieves, 36 NY2d 396, 402),

and we conclude that the single photo identification was acceptable

within the context of the warrant application as a whole. The

confidential informant was not shown the photograph of defendant until

the confidential informant had already completed two controlled buys

and had therefore seen the seller, i.e., defendant, twice. Moreover,

the police did not apply for the warrant immediately following the

single photo identification. Instead, two more controlled buys

followed approximately six weeks after the confidential informant’s

positive identification of defendant, and the confidential informant

identified the seller as defendant in both subsequent buys. Thus, the

confidential informant “had sufficient opportunity to observe

defendant . . . [and] to provide an independent identification”

(People v Kirby, 280 AD2d 775, 778, lv denied 96 NY2d 920; see People

v Kairis, 37 AD3d 1070, 1071, lv denied 9 NY3d 846), and “[a]ny taint

. . . was sufficiently attenuated by the passage of time between the

two identification[s]” (People v Davis, 294 AD2d 872, 873). Any

impropriety regarding the use of the single photo identification was

therefore vitiated. 

Defendant’s contention that the surveillance team did not observe

the third controlled buy that took place after defendant was seen

leaving the apartment in the first week of October 2011 is unpreserved

for our review inasmuch as it was not raised in any of defendant’s

motions or in appearances before the court (see generally People v

Santos, 122 AD3d 1394, 1395). In addition, defendant’s further

contention that the hearsay statement of an unidentified female failed

the Aguilar-Spinelli test is also unpreserved for our review inasmuch

as it is raised for the first time on appeal (see People v Stevens, 87

AD3d 754, 756, lv denied 18 NY3d 861). Finally, defendant’s

contention that the information upon which the warrant was based was

stale is also unpreserved for our review (see People v Long, 100 AD3d
-3- 718 

KA 12-01618 

1343, 1346, lv denied 20 NY3d 1063). We decline to exercise our power

to review any of those unpreserved contentions as a matter of

discretion in the interest of justice (see CPL 470.15 [3] [c]). We

have considered defendant’s remaining contentions and conclude that

they are without merit. 

Entered: July 10, 2015 Frances E. Cafarell

Clerk of the Court