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

840
KA 13-00938
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EDUARDO HERNANDEZ, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Douglas A.
Randall, J.), rendered March 19, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

     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 criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). We conclude that County Court
properly denied defendant’s motion to suppress evidence seized from
defendant’s home pursuant to a search warrant. Contrary to
defendant’s contention, the in camera testimony of the confidential
informant at the Darden hearing established that the confidential
informant existed and imparted to the police the information referred
to in the search warrant application (see People v Brown [appeal No.
1], 93 AD3d 1231, 1231, lv denied 19 NY3d 958; see generally People v
Darden, 34 NY2d 177, 181-182, rearg denied 34 NY2d 995). We therefore
conclude that the informant’s testimony allayed any concerns that the
informant “might have been wholly imaginary and the communication from
him entirely fabricated” (Darden, 34 NY2d at 182; see People v
Edwards, 95 NY2d 486, 494). Contrary to defendant’s further
contention, we conclude that the warrant application was facially
sufficient inasmuch as the supporting affidavit established that the
informant was reliable and had a basis of knowledge for the
information imparted to the police (see generally People v Flowers, 59
AD3d 1141, 1142-1143; People v Hernandez, 262 AD2d 1032, 1032, lv
denied 94 NY2d 863; People v Ferron, 248 AD2d 962, 963, lv denied 92
                                  -2-                           840
                                                          KA 13-00938

NY2d 879).   Finally, the sentence is not unduly harsh or severe.




Entered:   October 7, 2016                       Frances E. Cafarell
                                                 Clerk of the Court
