People v. Pleczyj

254 A.D.2d 753, 678 N.Y.S.2d 555, 1998 N.Y. App. Div. LEXIS 10449

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 1998
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Defendant’s conviction of four counts of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1], [3]) is supported by legally sufficient evidence of constructive possession (see, People v Bleakley, 69 NY2d 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 Martini, 79 NY2d 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 US 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 AD2d 147, 149, lv denied 82 NY2d 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 AD2d 886, 887-888, lv denied 87 NY2d 904; see also, People v Hathaway, 159 AD2d 748, 749; People v Christopher, 101 AD2d 504, 529, revd on other grounds 65 NY2d 417, rearg denied 65 NY2d 1054). (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.