PEOPLE v. GONZALEZ

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Freddie GONZALEZ, Defendant–Appellant.

Decided: October 11, 2011

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, MOSKOWITZ, ABDUS–SALAAM, JJ. Steven Banks, The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered September 17, 2008, convicting defendant, after a jury trial, of robbery in the first degree and criminal possession of a weapon in the fourth degree, and sentencing him to an aggregate term of 7 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   This Court has conducted an in camera review of the minutes of the hearing conducted pursuant to People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 [1974].   After reviewing those minutes and all of the arguments raised by defendant on appeal, we find no basis for suppression.

Defendant did not preserve his claim that the Darden procedure for ex parte examinations should be confined to cases involving warrants, and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits. We note that the Darden case itself involves a warrantless arrest.

We adhere to our prior decision in which we denied defendant's motion for disclosure of the sealed hearing minutes and related relief (M–3831, 2010 N.Y. Slip Op. 83545[U], 2010 WL 3745387 [2010] ).

The court properly received evidence that defendant possessed a knife at the time of his arrest one week after the robbery.   The victim testified that the knife resembled the knife used in the robbery.   Accordingly, the knife was clearly relevant (see e.g. People v. Del Vermo, 192 N.Y. 470, 481–482, 85 N.E. 690 [1908];  People v. Pimental, 48 A.D.3d 321, 851 N.Y.S.2d 518 [2008], lv. denied 10 N.Y.3d 843, 859 N.Y.S.2d 402, 889 N.E.2d 89 [2008] ).   Defendant did not preserve his argument that the knife should have been excluded as evidence of an uncharged crime, or his assertion that the prosecutor's summation raised a propensity argument, and we decline to review them in the interest of justice.   As an alternative holding, we find no basis for reversal.