SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
December 4, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
RANDALL JOSEPH JONAS, APPELLANT
Appeal from a judgment of the County Court, Clinton County, convicting appellant, upon his plea of guilty, of criminal possession of a dangerous drug, fourth degree.
Reynolds, J. P. Reynolds, J. P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Reynolds, J. P.
Appellant here seeks review of an order of the court denying his motion to suppress certain evidence after a hearing. The search warrant upon which the search here involved was conducted was issued on the basis of an affidavit which in turn is based solely on information supplied by a confidential informer. Appellant urges that the trial court should have required that the prosecution disclose the name of this informer, citing People v. Malinsky (15 N.Y.2d 86). Malinsky is also applicable here where the search is conducted pursuant to a search warrant (People v. Cerrato, 24 N.Y.2d 1) and we find its requirements not met on the present posture of the case (see People v. Cerrato, supra, p. 7; People v. Verrecchio, 23 N.Y.2d 489, 492-93; People v. White, 16 N.Y.2d 270, 273, cert. den. 386 U.S. 1008; People v. Malinsky, supra, p. 93). There is "no independent corroboration of the fact of the informer's existence or of his informing, nor was there, prior to the [arrests], any separate checking out of the principal elements of the informer's story or even any dependable proof of the accuracy of his information." (People v. Malinsky, supra, p. 94.) This is equally true as to that portion of the supporting affidavit which deals with the movement of the drugs to the Keeseville apartment. The People may, however, be able to cure this deficiency and accordingly the determination in this appeal should be withheld and the case remitted to the County Court for a further hearing on the motion to suppress in accordance with this opinion. We do not at this time pass on any other contention raised by appellant. Determination withheld and case remitted to the County Court, Clinton County, for a further hearing on the motion to suppress in accordance with this memorandum.
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