People v. Schnell

30 A.D.2d 631 | N.Y. App. Div. | 1968

Judgment unanimously reversed on the law and facts and a new trial granted. Memorandum: Defendant’s challenge to his conviction after trial relates to the legality of a search pursuant to a search warrant issued upon the application of an officer of the Amherst Police Department. In the affidavit upon which the warrant was issued the officer averred that the information upon which he relied in his application to the court was obtained from a third party. While it is clear that an affidavit in support of a search warrant may be based on hearsay information and need not reflect the personal observations of the affiant-police officer, in such a ease the informant’s statement must be reasonably corroborated by other matters within the officer’s knowledge demonstrating that the informant was credible or his information reliable. Such support for the officer’s affidavit is not to be found here and the pretrial motion of the defendant to suppress the evidence seized pursuant to the warrant issued should have been granted. The failure of the court to suppress the use of the evidence upon the trial requires the reversal of the judgment of conviction and granting of a new trial. (Appeal from judgment of Erie County Court convicting defendant of violation of subdivision 1 of section 1751 of the Penal Law.). Present— Goldman, J. P., Del Vecchio, Harsh, Witmer and Henry, JJ.