This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 116
The People &c.,
            Respondent,
        v.
Dayshawn Crooks,
            Appellant.




          Matthew C. Hug, for appellant.
          Brittany L. Grome, for respondent.




STEIN, J.:
          Defendant contends that he was entitled to a hearing
pursuant to People v Darden (34 NY2d 177 [1974]) to determine
whether the information provided by a confidential informant (CI)
was sufficient to establish probable cause to support a search
warrant for defendant's apartment.    Because there was a basis in

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the record for the determination of the lower courts that the
police established probable cause based on their own independent
observations, without having to rely on the statements of the CI,
a Darden hearing was not required.      Therefore, we affirm.
                                 I.
           A CI approached detective James Wood with information
that an individual -- who went by the street names "Day Day" and
"Munch" -- was selling drugs from an apartment on a certain
street.   The CI had previously worked with other detectives in
the same police department, providing reliable information that
resulted in several arrests and convictions.      The police
conducted their own research to locate the apartment and
determined that defendant -- who was known as "Day Day" --
resided there.   Detectives showed the CI photographs of the
building and defendant to confirm that they had identified the
correct location and person.
           Wood arranged a controlled drug buy between the CI and
defendant.   After confirming that the CI had no contraband or
money, detectives provided the CI with buy money, and fitted the
CI with a transmitter wire to hear and record the audio of any
interaction with defendant.    Wood listened to the live audio
throughout the transaction.    A detective observed the CI walk to
the top of the stairs at defendant's building, which contained
three apartments -- one in the basement, one on the first floor,
and defendant's on the second floor.      Although the police could


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only hear, not visually observe, what occurred when the CI was
inside defendant's apartment, the CI did not make any other stops
or interact with anyone outside the building on the way to or
from the apartment.   The CI returned to the detectives with a
substance that tested positive for cocaine.
          Wood also arranged a second controlled drug buy.     He
again searched the CI, gave him or her buy money, fitted the CI
with a wire and listened to the audio during the transaction.
While the CI was heading to defendant's apartment, defendant
apparently called the CI and changed the location of the sale.
Detectives observed the CI go to the new location and meet
defendant.   Detectives also observed defendant leave his
apartment, get into a minivan, drive to the new location, meet
the CI on the street and engage in some sort of transaction.     The
CI, who was monitored visually and by audio, did not interact
with anyone else or make any stops along the way.   After this
interaction with defendant, the CI again turned over to the
police a substance that tested positive for cocaine.
          Wood submitted a search warrant affidavit, and a City
Court Judge signed a warrant to search defendant's apartment for
drugs, paraphernalia, and proof of defendant's residence there.
When executing the warrant, detectives observed defendant open a
window and throw out a plastic bag that was found to contain a
large amount of cocaine.   Defendant was not charged in connection
with the two controlled buys but was charged, based on the


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execution of the warrant, with criminal possession of a
controlled substance in the third degree (two counts) and
criminally using drug paraphernalia in the second degree (two
counts).
            In his omnibus motion, defendant requested, among other
things, a Mapp hearing and a Darden hearing.    After the Mapp
hearing, County Court denied suppression of the items seized
during the search of defendant's apartment and also found that a
Darden hearing was unnecessary because reasonable cause for the
search existed independently of the statements by the CI to the
police.    Following a jury trial, defendant was convicted of the
drug possession charges, but not the paraphernalia charges.      The
court sentenced him, as a second felony offender, to concurrent
terms of 8 years in prison and 3 years of postrelease
supervision.
            The Appellate Division affirmed, concluding that a
Darden hearing was unnecessary because the probable cause for the
warrant was based on independent police observations, not the
CI's statements (129 AD3d 1207 [3d Dept 2015]).    A Judge of this
Court granted defendant leave to appeal (26 NY3d 966 [2015]).
                               II.
            The sole question before us is whether a Darden hearing
was required where the detectives monitored the CI and defendant
throughout the entirety of the encounters.    Stated otherwise, the
issue is whether the police established probable cause for the


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search warrant based on their own independent observations, or
whether the CI's statements were necessary to establish probable
cause.
          In Darden (34 NY2d 177 [1974]), this Court balanced the
need to assure the protection of confidential informants with the
rights of criminal defendants to challenge the probable cause
offered as justification for the seizure of evidence.   We "held
that, where 'there is insufficient evidence to establish probable
cause apart from the testimony of the arresting officer as to
communications received from an informer,' it would be 'fair and
wise' for the People to 'be required to make the informer
available for interrogation before the Judge'" (People v Edwards,
95 NY2d 486, 492 [2000], quoting Darden, 34 NY2d at 181).     We
further stated in Darden that, when the identity of the CI is
raised at a suppression hearing, the court should conduct an in
camera inquiry outside the presence of defendant and his counsel,
and make a summary report regarding the existence of the informer
and communications made by the CI to the police, taking
precautions to protect the anonymity of the CI to the maximum
extent possible (see Darden, 34 NY2d at 181).   This procedure is
"designed to protect against the contingency, of legitimate
concern to a defendant, that the informer might have been wholly
imaginary and the communication from him [or her] entirely
fabricated.   At the same time the legitimate interests of the
police in preserving the anonymity of the informer [are]


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respected" (id. at 182).   Such a procedure "is necessary in order
to fulfill the underlying purpose of Darden: insuring that the
confidential informant both exists and gave the police
information sufficient to establish probable cause, while
protecting the informant's identity" (Edwards, 95 NY2d at 494;
see People v Serrano, 93 NY2d 73, 76 [1999]).   If, however,
probable cause can be established without the CI's statements, a
Darden hearing is unnecessary (see Edwards, 95 NY2d at 493;
Serrano, 93 NY2d at 77).
          In People v Adrion (82 NY2d 628 [1993]), this Court
concluded that the information from a CI's tip was necessary to
establish probable cause because, although the arresting officers
personally observed some evidence of criminality, they possessed
only reasonable suspicion without the information provided by the
CI (see id. at 633-634).   Specifically, the lead FBI agent had
"personally observed a number of suspicious circumstances," but
those observations were not sufficient to link the defendants to
stolen property without the CI's statements (id. at 634).    The
Court found that "the informant's tip was inextricably tied to
every aspect of the People's proof on the probable cause
question," and the officers' observations were not truly
independent of it, so the court could insist on production of the
CI to assure that he or she existed and actually communicated
with the police (id. at 636).   We noted that
          "Darden concerns the . . . distinct problem
          of verifying the truthfulness of the police

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          witness's testimony about his or her dealing
          with a known informant. As to that question,
          the officer's testimony regarding observed
          facts corroborating the accuracy of the
          informant's purported tip is of no moment,
          since it does not aid the court in
          ascertaining that the source of the
          underlying information was, in fact, a real
          informant as distinguished from an
          unauthorized wiretap, an improper search or
          some other illegal origin. In situations
          where a question is raised about such
          matters, there is no satisfactory substitute
          for the production of the informant -- or at
          least the production of extrinsic proof of
          the informant's existence when the informant
          is demonstrably unavailable. What is at
          stake in Darden situations is the integrity
          of the proceeding itself" (Adrion, 82 NY2d at
          635-636).
          A very different factual situation was presented in
People v Farrow (98 NY2d 629 [2002]).   There, a CI told the
police about a planned drug transaction by a described person in
a specific location.   An officer went to that location, saw a
person fitting the description given by the CI, and observed that
person reach into his pants and remove two pinkish translucent
bags containing a chunky white substance (see id. at 630).     Thus,
while the police were initially alerted to the transaction by a
CI, the officer personally observed the defendant commit a crime.
Contrasting the facts with those in Darden and Adrion, this Court
held that a Darden hearing was unnecessary because "probable
cause could be established by the independent observations of the
police officer" (id. at 631).
          The facts of the instant case are more analogous to
Farrow than Adrion.    Here, evidence was presented concerning two

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controlled drug buys.    The People did not establish that the
police directly observed that drugs or money were exchanged
between defendant and the CI in either transaction (compare
Farrow, 98 NY2d at 630).    However, such a showing was unnecessary
because the People were not attempting to establish probable
cause to arrest defendant for his participation in those drug
buys.   Instead, the People sought only to establish probable
cause to search defendant's apartment for drug activity.    The
proof concerning the two controlled buys -- independent of the
CI's statements -- was sufficient to establish probable cause for
that purpose.
            The first controlled buy took place in defendant's
building.    The police initially ensured that the CI had no drugs,
provided buy money and observed the CI approach and enter
defendant's building.    Wood monitored the live audio of the
transaction and recorded it.    Detectives then saw the CI exit the
building and, without making any stops or interacting with anyone
else, return to them with cocaine.
            The second controlled buy took place on the street.
Detectives again confirmed that the CI had no drugs, supplied buy
money and a transmitting device, visually observed that the CI
did not interact with anyone else, observed defendant leave his
apartment and drive to the arranged location, and witnessed
defendant engaging in a transaction with the CI, with the end
result being that the CI possessed cocaine.    Additionally, the


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detectives engaged in live audio monitoring and recording of the
entire transaction for each of the controlled buys.       The
recordings constitute extrinsic proof of the informant's
existence, to assure that he or she was not imaginary (see
Adrion, 82 NY2d at 636; see also Darden, 34 NY2d at 182).
            Based on our review of the evidence at the Mapp hearing
-- including the exhibits and testimony regarding the detectives'
personal observations concerning both controlled drug buys -- we
conclude that there is ample record support for the determination
of the lower courts that the CI was in possession of cocaine
after the transactions with defendant in these controlled
circumstances, which were visually observed by the police
witnesses and constantly monitored by audio transmission.
Therefore, no Darden hearing was necessary, because probable
cause for the search warrant was established through independent
police observations, even without the CI's statements concerning
how he or she obtained the drugs.     Accordingly, the Appellate
Division order should be affirmed.
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order affirmed. Opinion by Judge Stein. Chief Judge DiFiore and
Judges Pigott, Rivera, Abdus-Salaam, Fahey and Garcia concur.

Decided June 23, 2016




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