PEOPLE v. NUNZIATA

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

The PEOPLE, etc., respondent, v. William NUNZIATA, appellant.

Decided: September 20, 2004

NANCY E. SMITH, J.P., GABRIEL M. KRAUSMAN, STEPHEN G. CRANE, and ROBERT A. SPOLZINO, JJ. Jason Russo, Uniondale, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Cameron Kenny of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Gazzillo, J.), rendered May 14, 2002, convicting him of criminal possession of a controlled substance in the first degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the County Court properly concluded that there was no basis to suppress the evidence seized from his home pursuant to a search warrant.   It was the defendant's burden at the Franks hearing (see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667) to establish, by a preponderance of the evidence, that the police detective who prepared the warrant application made false statements knowingly and intentionally or with reckless disregard for the truth (see People v. Tambe, 71 N.Y.2d 492, 504, 527 N.Y.S.2d 372, 522 N.E.2d 448;  People v. Putsis, 217 A.D.2d 670, 630 N.Y.S.2d 86;  People v. Rayner, 171 A.D.2d 820, 567 N.Y.S.2d 764).   Although the confidential informant testified at the hearing that she did not make certain statements which the detective attributed to her in the warrant application, the hearing court found that her testimony was not credible.   This credibility assessment is entitled to great weight on appeal, and will not be disturbed unless clearly unsupported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. Simpson, 5 A.D.3d 613, 772 N.Y.S.2d 853, lv. denied 2 N.Y.3d 806, 781 N.Y.S.2d 306, 814 N.E.2d 478).   Since the decision not to credit the informant's hearing testimony is supported by the record, the defendant failed to meet his burden of establishing that the challenged statements in the warrant application were perjurious or made with a reckless disregard for the truth (see People v. Russell, 2 A.D.3d 1455, 1456, 770 N.Y.S.2d 252, lv. denied 2 N.Y.3d 745, 778 N.Y.S.2d 471, 810 N.E.2d 924;  People v. Seybold, 229 A.D.2d 915, 646 N.Y.S.2d 460;  People v. Rayner, supra;  People v. Williams, 119 A.D.2d 606, 607, 500 N.Y.S.2d 778).   In any event, the record supports the hearing court's further determination that probable cause for the issuance of the warrant existed even without considering the statements which allegedly were falsely attributed to the informant in the application (see People v. Tambe, supra at 505, 527 N.Y.S.2d 372, 522 N.E.2d 448;  People v. Russell, supra;  People v. Hernandez, 247 A.D.2d 912, 913, 668 N.Y.S.2d 532).

 Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish that the defendant was in constructive possession of the cocaine seized from a room in his home, and thus guilty of criminal possession of a controlled substance in the first degree (see Penal Law § 10.00[8];  People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563;  People v. Hojas, 271 A.D.2d 547, 706 N.Y.S.2d 349;  People v. Manson, 257 A.D.2d 580, 684 N.Y.S.2d 250).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

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