Opinion
5570 Ind. 3173/12
02-01-2018
The PEOPLE of the State of New York, Respondent, v. Franklin GARCES, Defendant–Appellant.
Rosemary Herbert, Office of the Appellate Defender, New York (Samuel J. Mendez of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yan Slavinskiy of counsel), for respondent.
Rosemary Herbert, Office of the Appellate Defender, New York (Samuel J. Mendez of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yan Slavinskiy of counsel), for respondent.
Renwick, J.P., Richter, Tom, Gesmer, Oing, JJ.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered December 20, 2013, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the second and seventh degrees, and sentencing him to an aggregate term of three years, unanimously affirmed.
We find no procedural or substantive basis for suppressing the drugs recovered from defendant. Based on our examination of confidential materials, including minutes of a hearing under People v. Darden ( 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 [1974] ), we find that the court properly employed the procedures discussed in People v. Castillo ( 80 N.Y.2d 578, 592 N.Y.S.2d 945, 607 N.E.2d 1050 [1992], cert denied 507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477 [1993] ), and that the confidential informant provided reliable information, based on personal knowledge, establishing probable cause for defendant's arrest. Confidential Darden hearing testimony may be used to establish, not only the informant's existence, but probable cause itself, where the security concerns and other requirements of Castillo are present (see e. g. People v. Lowe, 50 A.D.3d 516, 856 N.Y.S.2d 90 [1st Dept. 2008], affd 12 N.Y.3d 768, 879 N.Y.S.2d 25, 906 N.E.2d 1057 [2009] ).
The court also properly declined to compel disclosure of the informant's identity either at the suppression hearing or at trial. The record demonstrates a continuing need to conceal the informant's identity, notwithstanding his termination as an informant. Furthermore, defendant did not meet his burden of showing that he needed to call the informant as a trial witness (see People v. Pena, 37 N.Y.2d 642, 644, 376 N.Y.S.2d 452, 339 N.E.2d 149 [1975] ; People v. Goggins, 34 N.Y.2d 163, 169–170, 356 N.Y.S.2d 571, 313 N.E.2d 41 [1974], cert. denied 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 [1974] ).The People provided reasonable assurances as to the identity and unchanged condition of the drugs seized from defendant, including the fact that the drugs were kept in identifiable containers (see People v. Miller, 209 A.D.2d 187, 188, 618 N.Y.S.2d 279 [1st Dept. 1994], affd 85 N.Y.2d 962, 629 N.Y.S.2d 720, 653 N.E.2d 616 [1995] ). The absence of testimony from the chemist who initially tested the drugs, and minor inconsistencies in testimony describing the drugs' appearance, went only to the weight to be accorded the evidence, not its admissibility (see People v. Julian, 41 N.Y.2d 340, 392 N.Y.S.2d 610, 360 N.E.2d 1310 [1977] ; People v. Adderley, 105 A.D.3d 505, 963 N.Y.S.2d 104 [1st Dept. 2013], lv denied 22 N.Y.3d 1154, 984 N.Y.S.2d 638, 7 N.E.3d 1126 [2014] ).
We have considered and rejected defendant's remaining claims.