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

900
KA 11-00860
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEJUAN LONG, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered August 12, 2010. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree and criminal possession of a weapon in the
third degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in
the third degree (§ 265.02 [3]). Defendant contends that the People
failed to establish that he possessed the weapon, i.e., a handgun,
that was seized by the police during a search of his mother’s
apartment (apartment) and thus that the evidence is legally
insufficient to support the conviction. We reject that contention.
The legal sufficiency of the evidence supporting defendant’s
conviction “must be viewed in light of [Supreme C]ourt’s charge as
given without exception” (People v Ford, 11 NY3d 875, 878). Here, the
court charged the jury that to “[p]ossess means to have physical
possession or otherwise to exercise dominion or control over tangible
property” (see Penal Law § 10.00 [8]; CJI2d[NY] Physical and
Constructive Possession). The People presented evidence that, when
the officers executed the warrant to search the apartment, only
defendant and his mother were present. The mother was in one bedroom,
and the weapon was found in the pocket of a man’s jacket in another
bedroom, which defendant ran toward when the police entered the
apartment. That evidence is sufficient to allow a jury to infer that
defendant had dominion and control over the place where the handgun
was found (see People v Shoga, 89 AD3d 1225, 1227, lv denied 18 NY3d
886; see also People v Edwards, 39 AD3d 1078, 1079-1080). In
                                 -2-                          900
                                                        KA 11-00860

addition, “[t]he People . . . presented evidence that DNA samples
taken from the handgun were consistent with defendant’s DNA, from
which an inference could be made that defendant had physically
possessed the gun at some point in time” (People v Robinson, 72 AD3d
1277, 1278, lv denied 15 NY3d 809). Thus, the evidence, viewed in the
light most favorable to the People (see People v Contes, 60 NY2d 620,
621), is legally sufficient to establish that defendant possessed the
handgun. Further, viewing the evidence in light of the elements of
the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict finding that defendant possessed
the handgun is not against the weight of the evidence (see Robinson,
72 AD3d at 1278).

     Defendant failed to preserve for our review his contention that
the court erred in failing to define “dominion” and “control” in that
part of its jury charge relating to the weapon possession counts
inasmuch as he did not request that the court define those terms or
object to the charge as given (see People v Perez, 89 AD3d 1393, 1394,
lv denied 18 NY3d 961; People v Smith, 32 AD3d 1318, 1319, lv denied 7
NY3d 929; People v Pross, 302 AD2d 895, 897, lv denied 99 NY2d 657).
We decline to exercise our power to review that contention as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).

     As defendant correctly contends, his Sixth Amendment right of
confrontation was violated when the prosecutor referred to an
unidentified confidential informant in her opening statement and
elicited testimony concerning the informant during the People’s case.
We agree with the People, however, that any error resulting in the
violation of defendant’s right of confrontation is harmless beyond a
reasonable doubt inasmuch as “there is no reasonable possibility that
the error affected the jury’s verdict” (People v Porco, 17 NY3d 877,
878, cert denied ___ US ___, 132 S Ct 1860; see People v Morrison, 90
AD3d 1554, 1557; see generally People v Crimmins, 36 NY2d 230, 237).

     Contrary to defendant’s further contention, in deciding
defendant’s suppression motion the court properly denied discovery of
the identity of the confidential informant and the warrant application
papers without holding a Darden hearing (see People v Serrano, 93 NY2d
73, 76-77). A Darden hearing is not always required “when a defendant
has been denied discovery of the identity of the informant and of the
warrant application papers” (id.). Rather, a Darden hearing “is
required ‘where there is insufficient evidence to establish probable
cause apart from the testimony of the arresting officer as to
communications received from an informer’ ” (id. at 77). Indeed, it
is well settled that, “where the suppression court has before it the
warrant papers and the transcript of the informant’s testimony before
the issuing Judge, ‘[t]he court [is] left with the relatively
uncomplicated task of deciding whether, based on [the warrant papers
and testimony] . . . , the issuing Judge reasonably could have
concluded that probable cause existed’ ” (id. at 76, quoting People v
Castillo, 80 NY2d 578, 585). Here, in making the determination that
probable cause existed for the issuance of the warrant authorizing the
police to search the apartment, the court had before it the warrant
application and the “in-camera testimony or notes” of the issuing
                                 -3-                           900
                                                         KA 11-00860

court, and thus a Darden hearing was not required.

     We also reject defendant’s contention that the search warrant was
not supported by probable cause. The court properly concluded that
“[t]he warrant was valid as it was based on firsthand information from
the officer who conducted the monitored, controlled drug buy [at the
apartment] with a confidential informant, thereby establishing the
informant’s reliability” (People v Lamont, 21 AD3d 1129, 1130-1131, lv
denied 6 NY3d 835; see People v Morton, 288 AD2d 557, 558, lv denied
97 NY2d 758, cert denied 537 US 860), and the court “properly relied
upon the ability of [the issuing court] to assess the credibility of
the confidential informant” (People v Demus, 82 AD3d 1667, 1667, lv
denied 17 NY3d 815; see People v Park, 266 AD2d 913, 913). Finally,
defendant’s contention that the information on which the warrant was
based was stale is unpreserved for our review (see CPL 470.05 [2])
and, in any event, that contention lacks merit (see People v Ming, 35
AD3d 962, 964, lv denied 8 NY3d 883).




Entered:   November 9, 2012                     Frances E. Cafarell
                                                Clerk of the Court
