People v. Leggio

May 17, 2011
Versions:84 A.D.3d 1116
923 N.Y.S.2d 188

Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.), rendered October 23, 2007, convicting him of possessing a sexual performance by a child (two counts), upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, without a hearing, of that branch of the defendant’s omnibus motion which was to controvert a search warrant and to suppress physical evidence seized in execution thereof.

*1117Ordered that the judgment is affirmed.

There is a strong judicial preference for search warrants (see People v Hanlon, 36 NY2d 549, 558 [1975]; People v Corr, 28 AD3d 574 [2006]; People v Williams, 249 AD2d 343, 344 [1998]). “The search warrant application must provide the court with sufficient information to support a reasonable belief that evidence of illegal activity will be present at the specific time and place of the search” (People v Williams, 249 AD2d at 344).

Contrary to the defendant’s contention, the County Court properly denied, without a hearing, that branch of his omnibus motion which was to controvert a search warrant and to suppress physical evidence seized in execution of the warrant. The warrant application was accompanied by the affidavit of a police officer, which was supported by the sworn statement of a named informant, who had previously given the police officer reliable information. The informant’s statement setting out in detail criminal activity personally observed by him was a sufficient predicate for a finding of probable cause (see People v Corr, 28 AD3d 574 [2006]; People v Anderson, 190 AD2d 741 [1993]).

Furthermore, the defendant was not entitled to an Alfinito hearing (see People v Alfinito, 16 NY2d 181 [1965]; see also Franks v Delaware, 438 US 154 [1978]) since, in his omnibus motion, he challenged only the veracity of the informant, and not the veracity of the police officer affiant (see People v Slaughter, 37 NY2d 596, 600 [1975]; People v Solimine, 18 NY2d 477, 479 [1966]; People v Williams, 249 AD2d at 344). In addition, the defendant’s contention that an in camera hearing should have been held to determine the reliability or veracity of the informant is without merit (see People v Anderson, 190 AD2d at 742). “[A] defendant is entitled to a hearing in which he may challenge the truthfulness of the allegations in the affidavit supporting a search warrant only where he attacks the veracity of the police officer affiant and not where . . . the credibility of the source of information is challenged” (People v Slaughter, 37 NY2d at 600; see People v Anderson, 190 AD2d at 742). Dillon, J.E, Balkin, Leventhal and Hall, JJ., concur.