        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

992
KA 15-00485
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOSEPH J. BARTHOLOMEW, DEFENDANT-RESPONDENT.


SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR APPELLANT.

DANIEL J. MASTRELLA, ROCHESTER, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Monroe County Court (Vincent M.
Dinolfo, J.), dated July 7, 2014. The order granted the motion of
defendant to suppress certain physical evidence.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed and the indictment is dismissed.

     Memorandum: In a prosecution arising from allegations that
defendant possessed certain stolen property, the People appeal
pursuant to CPL 450.20 (8) from an order granting defendant’s motion
to suppress evidence seized pursuant to a search warrant and an
amended search warrant issued by County Court (Piampiano, J.).
Contrary to the People’s contention, County Court (Dinolfo, J.)
properly suppressed the evidence.

     The People contend that the court erred in concluding that the
search warrant applications omitted material facts, and in further
concluding that the issuing judge lacked probable cause to issue the
initial warrant. We reject those contentions. Regardless of whether
the sheriff’s investigator who applied for the warrant omitted
material facts, the court properly concluded that the issuing judge
lacked probable cause to issue the first warrant. It is well settled
that a search warrant may be issued only upon a showing of probable
cause to believe that a crime has occurred, is occurring, or is about
to occur (see generally People v Mercado, 68 NY2d 874, 877, cert
denied 479 US 1095), and there is sufficient evidence from which to
form a reasonable belief that evidence of the crime may be found
inside the location sought to be searched (see People v Bigelow, 66
NY2d 417, 423). It is equally well settled that, under New York law,
“[p]robable cause may be supplied, in whole or part, through hearsay
information . . . New York’s present law applies the Aguilar-Spinelli
rule for evaluating secondhand information and holds that if probable
cause is based on hearsay statements, the police must establish that
                                 -2-                           992
                                                         KA 15-00485

the informant had some basis for the knowledge he [or she] transmitted
to them and that he [or she] was reliable” (id.; see People v
Griminger, 71 NY2d 635, 639). “Notably, where the information is
based upon double hearsay, the foregoing requirements must be met with
respect to each individual providing information” (People v Mabeus, 63
AD3d 1447, 1450; see People v Ketcham, 93 NY2d 416, 421; People v
Parris, 83 NY2d 342, 347-348). Here, although an identified citizen
is presumed to be reliable and thus the information submitted in
support of the warrant application met that prong of the Aguilar-
Spinelli test (see Parris, 83 NY2d at 349-350; People v Holmes, 115
AD3d 1179, 1180-1181, lv denied 23 NY3d 1038), the application failed
to establish the basis of knowledge of the ultimate source of the
information in the warrant application. The additional “Statement of
Facts” submitted in support of the warrant is unsigned, and there is
no information indicating who prepared it. Indeed it is impossible to
tell from reading it who provided the information contained in it, and
thus it does not “permit a reasonable inference that it was based upon
[the purported affiant]’s personal knowledge” (People v Jackson, 235
AD2d 923, 924). Inasmuch as the warrant was not issued on the
requisite showing of probable cause, the court properly suppressed all
evidence seized pursuant to it, including the observations of the
deputies who executed the warrant, regardless of their good faith in
observing that information while executing the initial invalid warrant
(see generally Griminger, 71 NY2d at 641; Bigelow, 66 NY2d at 426-
427).

     The People further contend that the amended warrant was properly
issued because the deputy sheriffs who conducted the search properly
observed certain stolen property in plain view during the execution of
the initial warrant, and used that information to obtain the amended
warrant. We likewise reject that contention. Because the initial
warrant was not based on probable cause, and evidence obtained from it
was used to obtain the amended warrant, the evidence seized pursuant
to the amended warrant must also be suppressed (see People v DelRio,
220 AD2d 122, 131, lv denied 88 NY2d 983; see also People v Perez, 266
AD2d 242, 243, lv dismissed 94 NY2d 923).

     Consequently, “the indictment must be dismissed [because] the
unsuccessful appeal by the People precludes all further prosecution of
defendant for the charges contained in the accusatory instrument”
(People v Felton, 171 AD2d 1034, 1034, affd 78 NY2d 1063; see CPL
450.50 [2]).




Entered:   October 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
