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Omnibus motion is questioned


A Kings Criminal Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered September 25, 1990, convicting him of criminal possession of a controlled substance in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

A Lawyer said that, on October 14, 1989 at approximately 2:30 A.M., the victim was killed during a robbery on the 10th floor of an apartment building in Brooklyn. Later that day, the investigating detective, received a phone call from a known person, who stated that she had information regarding the victim’s murder. The person, who lived on the ninth floor of that building, told the said detective and another detective, to whom she had previously provided information in another case leading to the arrest of three perpetrators for robbery in the third degree, that at approximately 2:30 A.M. she had heard three gunshots.

She further stated that she then saw the defendant, whom she had known for 12 years; emerge from the stairwell from the tenth floor to the ninth floor, while wrapping a long-sleeved, light-colored shirt around a .25 caliber silver handgun. She stated that she then saw the defendant enter an apartment, also on the ninth floor. A Kings Cocaine Possession Lawyer said that, based on this information, the police, referring to the caller as an unidentified informant, obtained a warrant to search the defendant’s apartment. The search produced 322 vials of crack cocaine and a black leather bag containing a chunk of crack cocaine. The combined weight of the crack cocaine from these sources was over two ounces.

A Drug Possession Lawyer said that, defendant was approached by an undercover policeman and an informant on July 30, 1974, and again on August 7, 1974. On both occasions the officer asked defendant to sell him $100 worth of cocaine. On July 30 defendant introduced the agent to a supplier. The supplier handed a packet containing cocaine to defendant, who passed it to the undercover agent. The agent handed $100 to Negron. On August 7, however, defendant told the agent to wait on a park bench while he searched the park for a supplier. The agent handed $100 directly to the defendant. Within an hour, defendant returned and escorted the agent to his apartment, where the cocaine was given to the agent.

The issue in this case is whether defendant is entitled to his omnibus motion to suppress the evidence obtained against him.

The key question on the appeal is whether defendant acted, in both transactions, solely as the agent of the undercover policeman, thereby absolving him of any criminal responsibility for selling narcotics. The jury’s verdict represented a finding that defendant was acting as the agent of the undercover policeman on July 30, but was acting as a seller in his own right on August 7. That verdict is amply supported by the evidence.

The hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress physical evidence. It is well settled that when an application for a search warrant relies on information provided by an undisclosed informant, it must meet the Aguilar- Spinelli two-prong test. In this case, the basis of the informant’s knowledge is explicit and first hand. The “reliability” prong, however, is challenged on this appeal. Here, the informant identified the victim, the murder location, the number of shots fired, and even the caliber of weapon used. That information either matched or had been independently confirmed by information the police already had, through their own investigation. We conclude that her reliability was sufficiently established to satisfy the Aguilar-Spinelli test.

Accordingly, the court held that the judgment is affirmed. The defendant’s remaining contentions are not preserved for appellate review and we decline to reach them in the exercise of our interest of justice jurisdiction.

If the search warrant is illegally obtained, the evidence used against your case should be suppressed. Seek the representation of Kings Drug Possession Attorney and Kings Criminal Attorney at Stephen Bilkis and Associates in order to defend your case.

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