People v Williford
Annotate this CaseDecided on July 12, 2017
County Court, Erie County
The People of the State of New York, Appellant, vs.
against
Zachary N. Williford, Respondent.
2015-APP-234
HON. JOHN FLYNN
Erie County District Attorney
By: RAYMOND C. HERMAN, ESQ.
Assistant District Attorney
25 Delaware Avenue
Buffalo, New York 14202
LEIGH E. ANDERSON, ESQ.
69 Delaware Avenue, Suite 1001
Buffalo, New York 14202
Michael F. Pietruszka, J.
The Appellant appeals from an order of the City Court of Buffalo (Eagan, J.), dated October 20, 2015, suppressing evidence recovered pursuant to a search warrant.
The Defendant was charged with Criminal Possession of a Controlled Substance in the Third Degree, in violation of Penal Law (PL) Section 220.16 (1); Criminal Possession of a Controlled Substance in the Fifth Degree, in violation of PL Section 220.06 (5); Criminally Using Drug Paraphernalia in the Second [*2]Degree, in violation of PL Section 220.50 (1), (2) and (3); and Unlawful possession of Marijuana, in violation of PL Section 221.05. The charge of Criminal Possession of a Controlled Substance in the Third Degree was dismissed; and the charge of Criminal Possession of a Controlled Substance in the Fifth Degree was reduced to Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of PL Section 220.03.
The Respondent filed a motion in the Trial Court seeking suppression of evidence seized from his residence pursuant to a search warrant. The Respondent sought discovery of the search warrant application and the in camera testimony of the confidential informant and, in the alternative, asked the Trial Court to review the search warrant application. (18-28)
On July 27, 2015, the Trial Court agreed to review the transcript of the confidential informant's testimony, over the objection of the Appellant. (39-40; 30-34). On September 28, 2015, the Trial Court ruled from the Bench that, after reviewing the search warrant application, the in camera testimony of the confidential informant and the applicable law, there was insufficient "probable cause" for the issuance of the search warrant and ordered all of the evidence seized suppressed. The Trial Court reduced its determination to writing in the Decision and Order dated October 20, 2015. The People filed a statement pursuant to Criminal Procedure Law (CPL) Section 450.50 on October 27, 2015.
A Notice of Appeal was timely filed by the People.
A Brief and Stipulated Record were submitted on behalf of the Appellant by Michael J. Hillery, Esq. and a Brief was submitted on behalf of the Respondent by his attorney, Leigh E. Anderson, Esq. Oral argument was heard on May 27, 2017.
It is the position of the Appellant that there was sufficient "probable cause" to support the issuance of the search warrant. The Respondent disagrees.
To establish "probable cause", a search warrant application must provide sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place. The critical facts and circumstances for the reviewing court are those which are made known to the issuing magistrate at the time the warrant application was issued. The issuing magistrate's determination that "probable cause" existed must be accorded "great deference". People v. Park, 266 AD2d 913.
This Court has reviewed the search warrant application and the in camera testimony of the confidential informant. Based upon its review, this Court concurs with the Trial Court that there was insufficient "probable cause" to issue the search warrant. The confidential informant's sworn testimony was that the most [*3]recent time he/she had been in the Defendant's residence to purchase narcotics was "[m]aybe about a month ago, month and a half ago." The fact that the Defendant's more recent narcotics sales took place in his automobile rather than his residence raises the question of whether it is reasonable, under all of the circumstances, to believe that the police would find narcotics in his residence if they searched that residence at the time that the warrant was executed. People v. Hansen, 38 NY2d 17; People v. Williams, 140 AD3d 1526; People v. Ming, 35 AD3d 962 ; People v. Acevedo, 175 AD2d 323. This Court agrees with the determination of the Trial Court that this information, which was presented to the issuing magistrate, was too stale to serve as the basis for the issuance of a search warrant in light of the facts and circumstances of this case.
After having reviewed the Record on Appeal, and the Briefs and oral argument of both parties, and due deliberation having been had thereon, this Court finds that no mistake, bias or abuse of discretion by the Trial Court is apparent from the Record on Appeal.
Accordingly, the Decision and Order of the Trial Court dated October 20, 2015, suppressing the evidence recovered pursuant to the search warrant herein, is hereby AFFIRMED.
This decision shall constitute the Order of the Court in this matter and no other or further Order shall be required.
DATED: Buffalo, New York
July 12, 2017
_____________________________________
MICHAEL PIETRUSZKA, JCC
GRANTED:
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