People v. Dawson

• Decision Date: 31 October 2013
• Citation: 2013 N.Y. Slip Op. 07077,973 N.Y.S.2d 850,110 A.D.3d 1350
• Parties: The PEOPLE of the State of New York, Respondent, v. Titus DAWSON, Appellant.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 1350
973 N.Y.S.2d 850
2013 N.Y. Slip Op. 07077

The PEOPLE of the State of New York, Respondent,
v.
Titus DAWSON, Appellant.

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

Oct. 31, 2013.

[973 N.Y.S.2d 851]

James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.

Before: STEIN, J.P., McCARTHY, SPAIN and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered December 11, 2009 in Albany County, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the third degree.

On March 6, 2009, police officers were dispatched to 521 Lark Drive in the City of Albany in response to a call for a burglar alarm going off. Upon arriving, officer Joel Caldwell noticed that the back door to the residence was open and the door frame was splintered, and called for back up. Detective Scott Gavigan soon responded, and Caldwell and Gavigan proceeded to “clear” the residence. Although no intruders were discovered, Caldwell and Gavigan did observe a .380 caliber semiautomatic pistol in a partially open dresser drawer. Based upon this, the police secured the building and applied for, and were granted, a search warrant. A further search was then conducted, resulting in the seizure of the gun, $8,880 in cash and a quantity of marihuana.

Defendant subsequently was indicted and charged with criminal possession of a weapon in the third degree. Following a jury trial, defendant was convicted as charged and thereafter was sentenced, as a second felony offender, to 3 1/2 to 7 years in prison—said sentence to be served concurrently with the sentence imposed upon defendant's subsequent plea of guilty to

[973 N.Y.S.2d 852]

criminal possession of a controlled substance in the fourth degree. This appeal by defendant ensued.

We affirm. Initially, we reject defendant's claim that the underlying search warrant was not supported by probable cause. Simply put, the warrant application and supporting documentation, which described the contraband found—in plain view—at the scene and established that the dwelling in question was defendant's residence, provided “sufficient information to support a reasonable belief that evidence of a crime may be found [therein]” ( People v. Pinkney, 90 A.D.3d 1313, 1315, 935 N.Y.S.2d 374 [2011] [internal quotation marks and citations omitted]; accord People v. Vanness, 106 A.D.3d 1265, 1266, 965 N.Y.S.2d 227 [2013] ). Accordingly, we discern no error in Supreme Court's denial of defendant's suppression motion.

Defendant next asserts that a Brady and/or Rosario violation occurred when the People failed to disclose that one of their rebuttal witnesses had been convicted of disorderly conduct, thereby warranting reversal of the underlying conviction. We do not agree. CPL 240.45(1)(b) requires the People to disclose a prosecution witness's judgment of conviction only if “the record of [such] conviction is known by the prosecutor to exist.” Here, there is nothing in the record to suggest that the People were aware of the relevant conviction until defense counsel raised this issue during the charge conference and, clearly, the People cannot be faulted for failing to disclose information that they did not possess ( see People...