Opinion
February 4, 1994
Appeal from the Erie County Court, Rogowski, J.
Present — Callahan, J.P., Pine, Fallon, Doerr and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting him of criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree. On appeal, defendant raises several issues challenging the validity of the search warrant, none of which requires reversal. Defendant's contentions that the search warrant was executed in contravention of the time requirements set forth in CPL 690.30 (1) and that it was stale when it was executed have not been preserved for our review (see, CPL 470.05).
We reject the contention of defendant that the suppression court erred in denying his motion to obtain the identity and the in camera testimony of the confidential informant (see, People v Darden, 34 N.Y.2d 177, 181). Defendant has no unconditional right to be informed of the identity, affidavits or testimony of a confidential informant. The record reflects that the suppression court reviewed the evidence presented to the issuing Magistrate and found that it supported his finding of probable cause. Thus, the requirement for an independent review of the facts presented was satisfied (see, People v. Fino, 14 N.Y.2d 160, 163; People v. Diaz, 147 A.D.2d 912, lv denied 73 N.Y.2d 1014; People v. Delgado, 134 A.D.2d 951, lv denied 71 N.Y.2d 895).
We agree with defendant that it was error to require him to appear before the Grand Jury in handcuffs. It is well settled that a criminal defendant may not be physically restrained in the presence of a jury unless there is a rational basis, articulated on the record, for the restraint (see, People ex rel. Washington v. Johnson, 79 N.Y.2d 934, 935; People v. Mendola, 2 N.Y.2d 270, 275) or "it is clear that the jury was not prejudiced thereby" (People v. Thomas, 125 A.D.2d 873, 874; see, People v. Mendola, supra, at 275). The record contains no facts to justify the restraint of defendant with handcuffs. Reversal is not required on that ground, however, because the prosecutor twice gave cautionary instructions to the Grand Jury, which dispelled any prejudice that may have resulted (see, People v. Greiner, 156 A.D.2d 813, 817, lv denied 75 N.Y.2d 919).
Defendant further contends that his conviction of criminal possession of a controlled substance in the seventh degree is not supported by legally sufficient evidence. We agree. Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we conclude that the People failed to establish that defendant exercised dominion and control over the area where the subject drugs were found (see, People v. Francis, 79 N.Y.2d 925, 926; see also, People v. Manini, 79 N.Y.2d 561, 573-574). Therefore, we modify the judgment by reversing defendant's conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon and dismissing that count of the indictment.
Finally, we decline to exercise our discretion to modify the sentence imposed upon defendant's conviction of criminal possession of a weapon in the third degree.