Opinion
12990, 1984/12.
04-05-2016
The PEOPLE of the State of New York, Respondent, v. Rodman RIVERA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
MAZZARELLI, J.P., RENWICK, ANDRIAS, RICHTER, FEINMAN, JJ.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered September 25, 2012, convicting defendant, upon his plea of guilty, of three counts of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 11 years, unanimously affirmed.
We previously held defendant's appeal in abeyance (127 A.D.3d 595, 8 N.Y.S.3d 118 [1st Dept.2015] ), and remanded the matter for a hearing, holding that it was error to deny defendant's motion to suppress two pistols on the ground that he lacked standing. Initially, we note that on remand the motion court erred to the extent it stated at the conclusion of the hearing that defendant still lacked standing, as our earlier decision finding automatic standing based on the automobile presumption (Penal Law § 265.15[3] ), was dispositive, and nothing in our decision suggested that the People were entitled to a new opportunity before the trial court to show that automatic standing did not apply. We also note that our remand did not encompass the recovery of defendant's cell phone, because the remand was limited to matters about which the court had denied a hearing, i.e. the pistols.
The record supports the motion court's conclusion upon remand that the pistols should not be suppressed. Although the trial court could have made a more complete record at the suppression hearing as to why no information about the tip could be disclosed, or could have given defense counsel details that would not have revealed the confidential informant's identity, we find, based on our examination of the confidential materials, that overall 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 People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 (1974). We have reviewed the sealed transcript of the Darden hearing and the court's summary report, and find that the confidential informant existed and provided reliable information to the police that established probable cause for defendant's arrest. Thus, the police lawfully searched the car for illegal weapons (see 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] ; People v. Brown, 93 A.D.3d 1231, 940 N.Y.S.2d 429 [4th Dept.2012], lv. denied 19 N.Y.3d 958, 950 N.Y.S.2d 109, 973 N.E.2d 207 [2012] ; see also People v. Edwards, 1 A.D.3d 277, 767 N.Y.S.2d 583 [1st Dept.2003], lv. denied 1 N.Y.3d 627, 777 N.Y.S.2d 26, 808 N.E.2d 1285 [2004] ). We have considered defendant's remaining arguments and find them unavailing.
We perceive no basis for reducing the sentence.