People v. Kirby ( 1990 )

Judgment unanimously affirmed. Memorandum: The suppression court properly determined that the Aguilar-Spinelli test (see, Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410) does not apply to this situation, where the identity of the citizen informant was disclosed to the Magistrate and a deposition signed by the informant and based upon personal observation was submitted in support of the application for a search warrant (see, People v Hicks, 38 NY2d 90, 93). We agree with the suppression court that defendant failed to carry his burden of proving that the allegations contained in the application were perjurious (see, People v Tambe, 71 NY2d 492, 504; People v Alfinito, 16 NY2d 181, 186), and that the application for the search warrant was supported by probable cause. (Appeal from judgment of Orleans County Court, Miles, J. — attempted criminal possession of marihuana, second degree.) Present — Callahan, J. P., Doerr, Denman, Balio and Lawton, JJ.