Opinion
October 2, 1998
Appeal from Judgment of Supreme Court, Erie County, Burns, J. — Criminal Possession Weapon, 3rd Degree.
Present — Green, J. P., Lawton, Callahan, Boehm and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's conviction of four counts of criminal possession of a weapon in the third degree (Penal Law § 265.02, [3]) is supported by legally sufficient evidence of constructive possession ( see, People v. Bleakley, 69 N.Y.2d 490, 495). That theory is supported by the evidence presented by the People establishing that defendant controlled the area in which the police found the contraband ( see, People v. Manini, 79 N.Y.2d 561, 572-574).
We reject the contention of defendant that Supreme Court erred in denying his motion for a Franks hearing ( see, Franks v. Delaware, 438 U.S. 154). Defendant failed to make the necessary "substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit" ( Franks v. Delaware, supra, at 155-156; see also, People v. Grisafi, 192 A.D.2d 147, 149, lv denied 82 N.Y.2d 925). The failure of the affiant to disclose to the Magistrate that the informant initially identified another individual does not constitute a knowing, intentional or reckless disregard for the truth ( see, People v. Lavin, 220 A.D.2d 886, 887-888, lv denied 87 N.Y.2d 904; see also, People v. Hathaway, 159 A.D.2d 748, 749; People v. Christopher, 101 A.D.2d 504, 529, revd on other grounds 65 N.Y.2d 417, rearg denied 65 N.Y.2d 1054).