People v. Kirby

Appellate Division of the Supreme Court of New York

People v. Kirby

168 A.D.2d 981, 564 N.Y.S.2d 927, 1990 N.Y. App. Div. LEXIS 16544

Appellate Division of the Supreme Court of the State of New York·Decided December 21, 1990·Published·Cited by 4 cases

Opinion

Judgment unanimously affirmed. Memorandum: The suppression court properly determined that the Aguilar-Spinelli test (see, Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410) does not apply to this situation, where the identity of the citizen informant was disclosed to the Magistrate and a deposition signed by the informant and based upon personal observation was submitted in support of the application for a search warrant (see, People v Hicks, 38 NY2d 90, 93). We agree with the suppression court that defendant failed to carry his burden of proving that the allegations contained in the application were perjurious (see, People v Tambe, 71 NY2d 492, 504; People v Alfinito, 16 NY2d 181, 186), and that the application for the search warrant was supported by probable cause. (Appeal from judgment of Orleans County Court, Miles, J. — attempted criminal possession of marihuana, second degree.) Present — Callahan, J. P., Doerr, Denman, Balio and Lawton, JJ.

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Judgment unanimously affirmed. Memorandum: The suppression court properly determined that the Aguilar-Spinelli test (see, Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410) does not apply to this situation, where the identity of the citizen informant was disclosed to the Magistrate and a deposition signed by the informant and based upon personal observation was submitted in support of the application for a search warrant (see, People v Hicks, 38 NY2d 90, 93). We agree with the suppression court that defendant failed to carry his burden of proving that the allegations contained in the application were perjurious (see, People v Tambe, 71 NY2d 492, 504; People v Alfinito, 16 NY2d 181, 186), and that the application for the search warrant was supported by probable cause. (Appeal from judgment of Orleans County Court, Miles, J. — attempted criminal possession of marihuana, second degree.) Present — Callahan, J. P., Doerr, Denman, Balio and Lawton, JJ.

People v. Kirby, 168 A.D.2d 981, 564 N.Y.S.2d 927, 1990 N.Y. App. Div. LEXIS 16544 (N.Y. Ct. App. 1990).

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Opinion

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