People v. Felder

• Decision Date: 04 February 1994
• Docket Number: No. 2,2
• Parties: PEOPLE of the State of New York, Respondent, v. Charles FELDER, Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 793

607 N.Y.S.2d 793

201 A.D.2d 884

PEOPLE of the State of New York, Respondent, v. Charles FELDER, Appellant. Appeal No. 2.

Supreme Court, Appellate Division Fourth Department.

Feb. 4, 1994.

Linda S. Reynolds by Carolyn Balowitz, Buffalo, for appellant.

Kevin M. Dillon by J. Michael Marion, Buffalo, for respondent.

Before CALLAHAN, J.P., and PINE, FALLON, DOERR and DAVIS, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him of criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree. On appeal, defendant raises several issues challenging the validity of the search warrant, none of which requires reversal. Defendant's contentions that the search warrant was executed in contravention of the time requirements set forth in CPL 690.30(1) and that it was stale when it was executed have not been preserved for our review (see, CPL 470.05[2].

We reject the contention of defendant that the suppression court erred in denying his motion to obtain the identity and the in camera testimony of the confidential informant (see, People v. Darden, 34 N.Y.2d 177, 181, 356 N.Y.S.2d 582, 313 N.E.2d 49). Defendant has no unconditional right to be informed of the identity, affidavits or testimony of a confidential informant. The record reflects that the suppression court reviewed the evidence presented to the issuing Magistrate and found that it supported his finding of probable cause. Thus, the requirement for an independent review of the facts presented was satisfied (see, People v. Fino, 14 N.Y.2d 160, 163, 250 N.Y.S.2d 47, 199 N.E.2d 151; People v. Diaz, 147 A.D.2d 912, 538 N.Y.S.2d 730, lv. denied, 73 N.Y.2d 1014, 541 N.Y.S.2d 768, 539 N.E.2d 596; People v. Delgado, 134 A.D.2d 951, 521 N.Y.S.2d 1019, lv. denied 71 N.Y.2d 895, 527 N.Y.S.2d 1004, 523 N.E.2d 311).

We agree with defendant that it was error to require him to appear before the Grand Jury in handcuffs. It is well settled that a criminal defendant may not be physically restrained in the presence of a jury unless there is a rational basis, articulated on the record, for the restraint (see, People ex rel. Washington v. Johnson, 79 N.Y.2d 934, 935, 583 N.Y.S.2d 184, 592 N.E.2d 792; People v. Mendola, 2 N.Y.2d 270, 275, 159 N.Y.S.2d 473, 140 N.E.2d 353) or "it is clear that the jury was not prejudiced thereby" (People v. Thomas, 125 A.D.2d 873, 874, 510 N.Y.S.2d 460; see, People v. Mendola, supra, 2 N.Y.2d at 275, 159 N.Y.S.2d 473, 140 N.E.2d 353). The record contains no facts to justify the restraint of defendant with handcuffs. Reversal is not required on that ground, however, because the prosecutor twice gave cautionary instructions to the Grand Jury, which dispelled any prejudice that may have resulted (see, People v. Greiner, 156 A.D.2d 813, 817, 549 N.Y.S.2d 831, lv. denied, 75 N.Y.2d 919, 555 N.Y.S.2d 38, 554 N.E.2d 75).

Defendant further contends that his conviction of criminal possession of a controlled substance in the seventh degree is not supported by legally sufficient evidence. We agree....