THE PEOPLE OF THE STATE OF NEW YORK, Rеspondent, v JESSE LEWIS, Also Known as WESS, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
806 NYS2d 317
In 2002, the State Police Mid-Hudson Drug Enforcement Task Force was engaged in an undercover narcotics investigation in Ulster County and, in September of that year, defendant became a target of the investigаtion. During the course of that investigation, from September 2002 through November 2002, State Police undercover officers and a confidential informant engaged in numerous conversations and drug transactions with defendant and codefendants, during thе course of which many of the conversations between the confidential informant and defendant and an undercоver officer and defendant were tape-recorded.
At the conclusion of the investigation and following the execution of a search warrant at the premises where defendant resided, defendant was indicted and chargеd with criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree, four counts of criminal sale of a controlled substance in the second degree and five counts of criminal possession of a controlled substance in the third degree. Following defendant‘s unsuccessful attempt to suppress the use of the tape recordings and the evidence seized from his residence during execution of the search warrant, defendant was tried and convicted of the crimes of criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree, two сounts of crim
Defendant contends that the evidence seized from his aрartment pursuant to the search warrant should have been suppressed. We disagree. It is axiomatic that an application for a search warrant must satisfy a court that there is reasonable cause to believe that evidence of a crime may be found (see People v McCulloch, 226 AD2d 848, 849 [1996], lv denied 88 NY2d 1070 [1996]), and a sworn statement by a person attesting to facts personally оbserved will satisfy that requirement (see People v David, 234 AD2d 787, 788 [1996], lv denied 89 NY2d 1034 [1997]). However, where a warrant is based upon information provided by a confidential informant, the reliability and basis of knowledge of the informant must be established (see People v Martinez, 80 NY2d 549, 552 [1992]). Contrary to defendant‘s contention, thе reliability and basis of knowledge test was satisfied here. The sworn statement of the affiant/applicant as to his personal dealings with the confidential informant and his personal observations, as well as those of fellow officers, sufficiently corroborated the information provided by the informant (see People v Thomas, 129 AD2d 910, 911-912 [1987], lv denied 70 NY2d 657 [1987]). Moreover, the personal observatiоns of the affiant, as well as those of his fellow officers, are more than sufficient to establish probable causе, without regard to the information provided by the confidential informant.
We also reject defendant‘s contention thаt there was no basis for a “no knock” warrant here. Such a provision was justified given the fact that the substances seаrched for could be quickly destroyed (see People v Bell, 299 AD2d 582, 584 [2002], lv denied 99 NY2d 555 [2002]).
With regard to defendant‘s contention that certain testimony with respect to conversations had between the confidential informant and defendant constituted inadmissible hearsay, we disagree in all cited instances but one. Such testimony constituted part of the criminal res gestae and was admissible as such (sеe People v Ayala, 273 AD2d 40 [2000], lv denied 95 NY2d 863 [2000]). With regard to the one inadmissible hearsay statement by the confidential informant that he had paid defendant for thе narcotics purchased, we find such error to be harmless in view of the overwhelming evidence of defendant‘s guilt (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Peters, Spain and Mugglin, JJ., concur. Ordered that the judgment is affirmed.