People v. Rivera (Juan)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 16, 2018
• Docket: 2018 NYSlipOp 50033(U)
• Status: Published

Opinion

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<br><br><div align="center"><b><font size="+1">The People of the State of New York, Respondent,

<br><br>against<br><br>Juan Rivera, Defendant-Appellant.</font></b></div><br><br>

<p>Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Linda Poust-Lopez, J.), rendered October 29, 2014, convicting him, upon his plea of guilty, of attempted criminal possession of a firearm, and imposing sentence.</p>

<p>Per Curiam.</p>

<p>Judgment of conviction (Linda Poust-Lopez, J.), rendered October 29, 2014, affirmed.</p>

<p>The accusatory instrument charging attempted criminal possession of a firearm (<i>see</i> Penal Law  110/265.01-b[1]), was not jurisdictionally defective. The instrument recites that during the execution of a search warrant of defendant's apartment, police found a .32 caliber intact, but inoperable, firearm in a fish tank located in defendant's living room. Defendant's belief that the firearm was operable can be inferred from allegations that defendant stated to the police that he agreed to hold the gun as a favor for a drug dealer who used the gun for his protection, and that defendant intended to sell the gun if it was not timely retrieved <i>(see Matter of Lavar D.</i>, 90 NY2d 963, 965 [1997]; <i>People v Boyd</i>, 153 AD3d 1608 [2017]).</p>

<p>An in camera review of the minutes of the <i>Darden</i> hearing (<i>People v Darden</i>, 34 NY2d 177 [1974]) reveals that the confidential informant existed, and that the information he or she provided to the police was based on the informant's personal observations and sufficed to provide probable cause for the issuance of the search warrant (<i>see People v Raosto</i>, 110 AD3d 524, 526 [2013], <i>lv denied </i>22 NY3d 1090 [2014]). Defendant's arguments for disclosure of the warrant application are similar to those he made in an unsuccessful motion before this Court, and we see no reason to revisit our prior ruling (<i>see People v Lowe</i>, 50 AD3d 516 [2008], <i>affd</i> 12 NY3d 768 [2009]).</p>

<p>THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.</p>

<br>I concur I concur I concur

<br>Decision Date: January 16, 2018

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