SANTOS, GEORGE, PEOPLE v

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

1161
KA 12-01117
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

GEORGE SANTOS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)

JOHN J. RASPANTE, UTICA, FOR DEFENDANT-APPELLANT.

LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO,
ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Lewis County Court (Charles C.
Merrell, J.), rendered October 16, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree and criminally using drug
paraphernalia in the second degree.

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

Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of criminal possession of a
controlled substance (CPCS) in the third degree (Penal Law
§ 220.16 [1]) and criminally using drug paraphernalia in the second
degree (§ 220.50 [3]). In appeal No. 2, defendant appeals from a
judgment convicting him upon his plea of guilty of CPCS in the fourth
degree (§ 220.09 [1]). In appeal No. 3, defendant appeals from a
judgment convicting him upon his plea of guilty of two counts of
criminal sale of a controlled substance in the third degree
(§ 220.39 [1]). All of the pleas were entered during one plea
proceeding, following the denial of defendant’s suppression motion
concerning all of the charges. At the outset, we reject the People’s
contention that defendant’s waiver of the right to appeal was valid
and thus encompasses his challenge in each appeal to County Court’s
suppression ruling. “[W]e are unable to determine based on the record
before us whether the court ensured ‘that the defendant understood
that the right to appeal is separate and distinct from those rights
automatically forfeited upon a plea of guilty’ ” (People v Johnson,
109 AD3d 1191, 1191, lv denied 22 NY3d 997, quoting People v Lopez 6
NY3d 248, 256). Nevertheless, we conclude that the court properly
denied defendant’s motion.

Defendant contends that he was entitled to suppression because
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KA 12-01117

there was an insufficient basis for issuance of the warrant to search
his residence. Contrary to defendant’s contention, however, the
information in the search warrant application “was indicative of an
ongoing drug operation at defendant’s residence, and thus the
application ‘established probable cause to believe that a search of
defendant’s residence would result in evidence of drug activity’ ”
(People v Casolari, 9 AD3d 894, 895, lv denied 3 NY3d 672; see People
v Pitcher, 1 AD3d 1051, 1052). Defendant failed to preserve for our
review his contention that the search warrant was overly broad because
he “failed to raise that specific contention in his motion papers or
at the [suppression] hearing” (People v Price, 112 AD3d 1345, 1346;
see generally People v Maxis, 50 AD3d 922, 923; People v Caballero, 23
AD3d 1031, 1032, lv denied 6 NY3d 846). We decline to exercise our
power to review it as a matter of discretion in the interest of
justice (see CPL 470.15 [3] [c]).

Contrary to defendant’s further contention, the police had
probable cause for his warrantless arrest, which occurred prior to the
execution of the search warrant. We thus reject defendant’s
contention that he was entitled to suppression of the evidence derived
from the allegedly improper warrantless arrest, including, among other
things, cell phones and cash from his person. The record of the
suppression hearing establishes that an identified citizen told the
police that he purchased heroin from defendant once on the date of the
arrest and once on the day before the arrest, and another identified
citizen told the police that she witnessed both of those transactions.
“It is well settled that ‘information provided by an identified
citizen accusing another individual of the commission of a specific
crime is sufficient to provide the police with probable cause to
arrest’ ” (People v McClain, 67 AD3d 1480, 1480, lv denied 14 NY3d
803; see People v Brito, 59 AD3d 1000, 1000, lv denied 12 NY3d 814).

Entered: November 21, 2014 Frances E. Cafarell
Clerk of the Court