People v. Derek Chisholm


AD2 order dated November 9, 2011, affirming judgment of conviction. Decision below: 89 A.D.3d 859, 932 N.Y.S.2d 180. Jones, J., granted leave June 13, 2012.

ISSUES PRESENTED: (1) The court’s denial of defendant’s request for a Darden hearing. (2) The court’s refusal to review the testimony given by the confidential informant to the warrant-issuing court. (Assigned counsel: Allegra Glashausser & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)

Issue before the Court: Whether supreme court erred by failing to examine the transcript of the confidential informant’s testimony before the magistrate to determine whether the search warrant was issued upon probable cause or that the requirements of CPL 690.40 had been formally complied with.

Held: In a majority memorandum, the Court finds error because the search warrant and supporting affidavit do not themselves establish probable cause. The police officer’s affidavit did not contain "factual averments" that could have afforded the magistrate a basis for determining the reliability of the C.I. Review of the transcript would be necessary. However, supreme court did not abuse its discretion in denying the defense a Darden hearing.

CAL Observes: The Court remits to supreme court, chiding the People for its prior failure to see that the court reporter at the magistrate’s hearing timely produced the transcript as directed by the Appellate Division and expressing an expectation they would do so now