People v. Chisholm

• Decision Date: 09 November 2011
• Citation: 89 A.D.3d 859,932 N.Y.S.2d 180,2011 N.Y. Slip Op. 08163
• Parties: The PEOPLE, etc., respondent,v.Derek CHISHOLM, appellant.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 859

932 N.Y.S.2d 180

2011 N.Y. Slip Op. 08163

The PEOPLE, etc., respondent,

v.Derek CHISHOLM, appellant.

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

Nov. 9, 2011.

Lynn W.L. Fahey, New York, N.Y. (Jonathan Garvin of counsel), for appellant, and appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Josette Simmons–McGhee of counsel), for respondent.MARK C. DILLON, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.

Appeal by the defendant from (1) a judgment of the Supreme Court, Queens County (Holder, J.), rendered January 6, 2009, convicting him of criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (three counts), criminally using drug paraphernalia in the second degree, and criminal possession of marihuana in the fifth degree, after a nonjury trial, and imposing sentence, and (2) a resentence of the same court imposed January 13, 2009.

ORDERED that the judgment and resentence are affirmed.

The Supreme Court providently exercised its discretion in denying the defendant's application for a Darden hearing ( see People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49), in light of the fact that the confidential informant appeared before the issuing magistrate and gave sworn testimony concerning the events in question ( see People v. Serrano, 93 N.Y.2d 73, 77, 688 N.Y.S.2d 90, 710 N.E.2d 655; People v. Monk, 28 A.D.3d 793, 793, 816 N.Y.S.2d 108). Moreover, the defendant's conclusory, unsupported assertion that the officer's warrant affidavit was untruthful is insufficient to trigger the need for a hearing ( see CPL 710.60[1], [3] [b]; People v. Gaviria, 183 A.D.2d 913, 914, 584 N.Y.S.2d 146).

The defendant's contentions that the evidence was legally insufficient to establish that he possessed the weapons at issue with the intent to use them unlawfully against another, and that the evidence was legally insufficient to establish that he possessed certain drug paraphernalia with the intent to package or dispense a narcotic drug or stimulant are unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we find that it was legally sufficient to establish the defendant's guilt of the crimes he was convicted of beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d...