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

549
KA 12-01438
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

MICHAEL P. DEWITT, DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (DAVID DYS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered December 7, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the third degree (four counts), criminal sale of a
controlled substance in or near school grounds, criminal possession of
a controlled substance in the seventh degree (four counts), criminal
possession of a weapon in the second degree, criminal possession of a
controlled substance in the third degree (two counts), criminal
possession of a controlled substance in the fifth degree, criminally
using drug paraphernalia in the second degree and unlawful possession
of marihuana.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of, inter alia, criminal possession of a
weapon in the second degree (Penal Law § 265.03 [3]). Contrary to
defendant’s contention, the search warrant and the supporting
affidavit identified the make, model, color and identification number
of the vehicle to be searched and thus described with sufficient
particularity the vehicle to be searched (see generally People v
Nieves, 36 NY2d 396, 401; People v Palmeri, 272 AD2d 968, 969, lv
denied 95 NY2d 967). Although the vehicle was mistakenly listed in
the warrant under the heading “persons,” “hypertechnical accuracy” of
the description in the warrant is not required (Nieves, 36 NY2d at
401). Thus, we conclude that County Court properly denied that part
of defendant’s omnibus motion seeking suppression of the gun seized
during the search of defendant’s vehicle pursuant to the search
warrant.

Entered:   June 7, 2013                            Frances E. Cafarell
                                                   Clerk of the Court
