THE PEOPLE &C., RESPONDENT, v. GEORGE HETRICK, APPELLANT.
80 N.Y.2d 344, 604 N.E.2d 372, 590 N.Y.S.2d 183 (1992).
November 18, 1992
3 No. 239
Decided November 18, 1992
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
John R. McGlenn, for Appellant.
James T. Hayden, for Respondent.
HANCOCK, J.:
This appeal by defendant presents a question concerning the validity
of a warrant to search defendant's residence for which the sole
factual basis was information provided by a nine- year-old child
detailed in an affidavit attached to the warrant application.
Defendant contends that the child's statements could not have
constituted the basis for probable cause because the Village Justice
issuing the warrant failed to examine her pursuant to CPL 60.20 as to
her ability to understand the nature of an oath. For reasons which
follow, we hold that the child's hearsay statements were acceptable as
the predicate for probable cause and that CPL 60.20 did not require
the magistrate to examine the child prior to issuing a warrant. We,
therefore, affirm.
I.
On August 19, 1988 Hope Graves and her nine-year-old daughter Katy
Hetrick reported to the Elmira Heights police that Katy had seen her
father, the defendant, engaging in illegal drug activity. In both oral
and written statements taken by Officer Kowulich, Katy said that while
at her father's premises for visitation between July 15 and August 15,
1988 she saw her father and others using cocaine and marihuana. She
described in detail the substances, how they were used, where they
were stored, as well as the drug paraphernalia. She stated that when
she returned home, her mother asked her if defendant was drinking
again and she replied, "No, but he was smoking pot and doing cocaine
with these people at his apartment. There were people there about 5
times a week, and they were always getting high." She explained, "I
asked my father what that stuff was that they were doing and he told
me pot and coke."
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
This appeal by defendant presents a question concerning the validity of a warrant to search
Defendant contends that the child's statements could not have constituted the basis for
For reasons which follow, we hold that the child's hearsay statements were acceptable as the
We, therefore, affirm.
On August 19, 1988 Hope Graves and her nine-year-old daughter Katy Hetrick reported to the
In both oral and written statements taken by Officer Kowulich, Katy said that while at her
She stated that when she returned home, her mother asked her if defendant was drinking again
In her statement, Katy said, "I drew pictures of a pipe, a pot cigarette, a mirror showing
They arrested defendant and charged him with criminal possession of marijuana in the third
After County Court denied the motion to suppress the evidence, defendant pled guilty to
The requirement of probable cause may be satisfied by unsworn hearsay, however, when the
It is settled law in New York that probable cause may be based on unsworn hearsay only when
Although the United States Supreme Court has abandoned the Aguillar-Spinelli test in favor of
There are, moreover, ample indicia of the reliability of her statements.
This section creates a presumption that witnesses less than twelve years old are not
To meet the higher standard of legal sufficiency, CPL 70.10specifies "competent evidence
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