People v. McGriff

130 A.D.2d 141, 518 N.Y.S.2d 795, 1987 N.Y. App. Div. LEXIS 45075
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 13, 1987
StatusPublished
Cited by23 cases

This text of 130 A.D.2d 141 (People v. McGriff) 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. McGriff, 130 A.D.2d 141, 518 N.Y.S.2d 795, 1987 N.Y. App. Div. LEXIS 45075 (N.Y. Ct. App. 1987).

Opinions

OPINION OF THE COURT

Ellerin, J.

At issue on this appeal is the validity of the telephone search warrant which authorized a search of the premises where defendant resided and, also, of another residential dwelling some distance away. Our focus is directed both to the underlying sufficiency of the warrant itself and to the question of whether collateral estoppel effect should be accorded to the holding made in the separate case involving the other dwelling that such warrant was, in fact, infirm.

The relevant facts are as follows: On the evening of September 10, 1985, New York City Police Sergeant Clyde Foster applied by telephone to a Queens County Criminal Court Judge for a search warrant for two premises in Queens, 155-47 116th Avenue, and the second floor of a two-family dwelling at 116-66 231st Street. Sergeant Foster informed the Judge that at 6:15 p.m. an unidentified and unregistered informant, who had provided information in the past, told him that two black males had been abducted, beaten and were near death, at the [143]*143116th Avenue location, as the result of a drug transaction. Foster also indicated that the informant had told him that he had just left the location 20 minutes earlier and that he had been in the company of three of the suspects who were going to the 231st Street location, at about 8:00 p.m., in order to cut and distribute drugs.

Because the victims were said to be in danger, the Judge authorized a "no-knock” search of both premises, at any time of the day or night, and authorized the arrest of all persons found therein, as well as the seizure of drug paraphernalia, money, guns and any other contraband found.

The search of the 116th Avenue location later that night resulted in the arrest of seven people and the recovery of misdemeanor quantities of narcotics and several rifles. The search of the 231st Street location, which is defendant Mc-GrifFs home, resulted in the arrest of defendant and five others, and the recovery of approximately eight pounds of narcotics, eight loaded handguns, over $35,000 in cash, and drug paraphernalia.

Five of the persons arrested at the 116th Avenue location were charged with misdemeanors pursuant to a complaint filed in Queens County Criminal Court. Upon the defendants’ motion to controvert the search warrant, a hearing was held to determine whether probable cause existed to issue the warrant.

Sergeant Foster was the sole witness at this hearing. He testified that he never met or spoke directly with the informant but dealt with him only through a third person. In distinction to his conclusory statement in the telephone application with respect to the informant’s reliability, at the hearing Sergeant Foster stated that he had used this informant on only one prior occasion, a few months earlier, when he had given "slight information” about a homicide which resulted in an arrest by other police officers, but that he, Foster, did not know whether a conviction followed. In addition, Sergeant Foster acknowledged that the information provided to him contained few details from which the basis of the informant’s knowledge could be verified. He had been told that the 116th Avenue address was a one-family home, and that was what he reported to the Judge during the telephonic warrant application. In fact, the address was a three-family dwelling. He further acknowledged during his testimony at the hearing that the informant gave him no detailed information regard[144]*144ing the layout of the house or where the contraband could be found. While the informant stated that guns, drugs, and money could be found, he gave no details or specifics about their type or amount or where they could be located. In an attempt to corroborate the tip, Foster had sent surveillance teams to the two addresses, a fact which he had not disclosed in the telephonic application. In any event, no significant information was garnered by these surveillance units. At 9:05 p.m. on the night in question, almost three hours after the urgent call regarding pistol-whipped kidnap victims near death, the police executed the searches authorized by the telephone warrant. No kidnap victims were found, and no arrests for kidnapping or assault were made at either location.

The Queens County Criminal Court (Alan Beldock, J.), granted the motion to controvert the warrant and suppressed all of the contraband seized. That court found that the information could not be corroborated, although officers were sent to the scene, and that the reliability of the informant was not established by past performance or personal knowledge. Accordingly, the court found that under either the Aguilar-Spinelli rule requiring reliability of the informant and corroboration of the basis of his knowledge, or under the "totality of the circumstances” test of Illinois v Gates (462 US 213), the undetailed hearsay information supplied by this informant was insufficient to establish probable cause for the issuance of a warrant.

Defendant Kenneth McGriff and the others arrested at the 231st Street location were indicted by a Special Narcotics Grand Jury on drug and weapon charges, and their cases were removed to the Supreme Court, New York County, for prosecution.

During the pretrial stage, defendant McGriff moved to controvert the warrant and to suppress the contraband seized thereby. The affidavit of defendant’s attorney, on information and belief, set forth, as required by CPL 710.60 (1), the sources of the information in support of his belief. These included his conversations with "my client”, conversations with prosecuting authorities, information contained in the indictment warrant application, and other similar documents in the court file. The moving papers, which also demonstrated defendant’s standing by way of his sworn statement that the 231st Street address was his residence, were sufficient to warrant a hearing pursuant to CPL 710.60 (4). We find that summary denial of that motion by the court before whom the original application [145]*145was made (Rothwax, J.), was improper. The exquisite factual precision which the court deemed necessary to defeat summary denial is at variance with the provisions of CPL 710.60 (3), and establishment of that factual showing is the very purpose of the hearing which should have been granted at the outset.

When the case was assigned to an IAS Part, defendant moved for reargument of the motion and, in addition, submitted the minutes of the Queens hearing which had been concluded in the interim. The IAS court (McLaughlin, J.), finding that defendant had standing to move for suppression, granted the motion to the extent of directing a Franks hearing (Franks v Delaware, 438 US 154), limited to the issue of whether Sergeant Foster had perjured himself, and ordering an in camera Darden hearing (People v Darden, 34 NY2d 177) to examine the informant. The court declined to grant collateral estoppel effect to the Queens Criminal Court suppression ruling, finding that there was a lack of identity of parties both as to the prosecutors in each action and the parties defendant.

At the Franks hearing, Sergeant Foster testified once again as to the circumstances of the informant’s "tip”, this time in greater detail. Police Officers Myron Cherry and Larry Mikoleski also testified. The testimony indicated that the informant had actually telephoned Officer Cherry who passed the information on to a Sergeant McKeon who then notified Sergeant Foster.

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Bluebook (online)
130 A.D.2d 141, 518 N.Y.S.2d 795, 1987 N.Y. App. Div. LEXIS 45075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcgriff-nyappdiv-1987.