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

718
KA 12-01618
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANDRE BAPTISTA, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered April 11, 2012. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a controlled substance in the third degree and criminal possession
of a controlled substance in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of criminal possession of a controlled substance in
the third degree (Penal Law § 220.16 [1]) and criminal possession of a
controlled substance in the fourth degree (§ 220.09 [1]), defendant
contends that the search warrant in question was not issued upon
probable cause and that Supreme Court therefore erred in refusing to
suppress physical evidence seized during the execution of the search
warrant. We reject that contention.

     “It is well settled that probable cause may be supplied, in whole
or in part, [by] hearsay information, provided [that] it satisfies the
two-part Aguilar-Spinelli test requiring a showing that the informant
is reliable and has a basis of knowledge for the information imparted”
(People v Flowers, 59 AD3d 1141, 1142 [internal quotation marks
omitted]). Here, defendant does not challenge the confidential
informant’s hearsay information other than to say that the informant’s
reliability or basis of knowledge was not established. We agree with
the People that the confidential informant’s reliability and the basis
of his knowledge was established by evidence of the confidential
informant’s participation in the four controlled buys from defendant
and the confidential informant’s prior participation in over 20 other
investigations (see People v Myhand, 120 AD3d 970, 973-975, lv denied
25 NY3d 952; People v Monroe, 82 AD3d 1674, 1675, lv denied 17 NY3d
                                 -2-                           718
                                                         KA 12-01618

808; Flowers, 59 AD3d at 1142-1143; People v Lee, 303 AD2d 839, 840,
lv denied 100 NY2d 622). We therefore conclude that the People
satisfied both prongs of the Aguilar-Spinelli test.

     Defendant’s contention that he was never identified in the
warrant application is not preserved for our review (see generally
People v Fuentes, 52 AD3d 1297, 1298, lv denied 11 NY3d 736), and we
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [3] [c]).

     Contrary to the contention of defendant, the confidential
informant’s single photo identification of defendant was not improper
and did not taint the entire warrant application. The confidential
informant’s photo identification was not offered as “proof sufficient
to warrant a conviction beyond a reasonable doubt,” but it was instead
used simply to determine whether there was “information sufficient to
support a reasonable belief that an offense [had] been or [was] being
committed or that evidence of a crime [could] be found in a certain
place” (People v Bigelow, 66 NY2d 417, 423). Moreover, “[t]he
validity of the warrant is determined based on the information
available at the time it was issued” (People v O’Connor, 242 AD2d 908,
910, lv denied 91 NY2d 895; see People v Nieves, 36 NY2d 396, 402),
and we conclude that the single photo identification was acceptable
within the context of the warrant application as a whole. The
confidential informant was not shown the photograph of defendant until
the confidential informant had already completed two controlled buys
and had therefore seen the seller, i.e., defendant, twice. Moreover,
the police did not apply for the warrant immediately following the
single photo identification. Instead, two more controlled buys
followed approximately six weeks after the confidential informant’s
positive identification of defendant, and the confidential informant
identified the seller as defendant in both subsequent buys. Thus, the
confidential informant “had sufficient opportunity to observe
defendant . . . [and] to provide an independent identification”
(People v Kirby, 280 AD2d 775, 778, lv denied 96 NY2d 920; see People
v Kairis, 37 AD3d 1070, 1071, lv denied 9 NY3d 846), and “[a]ny taint
. . . was sufficiently attenuated by the passage of time between the
two identification[s]” (People v Davis, 294 AD2d 872, 873). Any
impropriety regarding the use of the single photo identification was
therefore vitiated.

     Defendant’s contention that the surveillance team did not observe
the third controlled buy that took place after defendant was seen
leaving the apartment in the first week of October 2011 is unpreserved
for our review inasmuch as it was not raised in any of defendant’s
motions or in appearances before the court (see generally People v
Santos, 122 AD3d 1394, 1395). In addition, defendant’s further
contention that the hearsay statement of an unidentified female failed
the Aguilar-Spinelli test is also unpreserved for our review inasmuch
as it is raised for the first time on appeal (see People v Stevens, 87
AD3d 754, 756, lv denied 18 NY3d 861). Finally, defendant’s
contention that the information upon which the warrant was based was
stale is also unpreserved for our review (see People v Long, 100 AD3d
                                 -3-                          718
                                                        KA 12-01618

1343, 1346, lv denied 20 NY3d 1063). We decline to exercise our power
to review any of those unpreserved contentions as a matter of
discretion in the interest of justice (see CPL 470.15 [3] [c]). We
have considered defendant’s remaining contentions and conclude that
they are without merit.




Entered:   July 10, 2015                       Frances E. Cafarell
                                               Clerk of the Court
