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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 21, 1990

StatusPublished

Cited by4 cases

This text of 168 A.D.2d 981 (People v. Kirby) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

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

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.

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Bluebook (online)

168 A.D.2d 981, 564 N.Y.S.2d 927, 1990 N.Y. App. Div. LEXIS 16544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kirby-nyappdiv-1990.

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