Peoplev.Wilson

Appellate Division of the Supreme Court of New York, Fourth DepartmentFeb 1, 2008
48 A.D.3d 1099 (N.Y. App. Div. 2008)
48 A.D.3d 1099851 N.Y.S.2d 7762008 N.Y. Slip Op. 841

No. KA 05-00928.

February 1, 2008.

Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.), rendered January 19, 2005. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree (two counts) and tampering with physical evidence.

EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JESSICA BIRKAHN OF COUNSEL), FOR RESPONDENT.

Before: Hurlbutt, J.P., Smith, Fahey, Peradotto and Pine, JJ.


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 one count of tampering with physical evidence (Penal Law § 215.40) and two counts of criminal possession of a controlled substance in the third degree (§ 220.16 [1], [12]). He contends that Supreme Court erred in determining following a Darden hearing that the confidential informant in fact existed and provided the information concerning two drug sales at the location where defendant was subsequently arrested ( see People v Darden, 34 NY2d 177, rearg denied 34 NY2d 995). We reject that contention ( see generally People v Edwards, 95 NY2d 486, 493-494; see generally Darden, 34 NY2d at 181-182). Upon our review of the sealed transcript of the testimony at the Darden hearing, as well as the court's requisite "summary report as to the existence of the informer and with respect to the communications made by the informer to the police to which the police testify" made available to defendant and the People ( Darden, 34 NY2d at 181), we conclude that the court properly concluded that the informant existed and that he provided the information to the police concerning the two drug sales at the specified location.