| People v Morgese (Nicholas) |
| 2009 NY Slip Op 50660(U) [23 Misc 3d 130(A)] |
| Decided on April 7, 2009 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a judgment of the Justice Court of the Town of New Windsor, Orange County
(Donald J. Suttlehan, J.), rendered December 27, 2007. The judgment convicted defendant, upon
his plea of guilty, of criminal possession of a weapon in the fourth degree. The appeal brings up
for review the denial, without a hearing, of defendant's motion to suppress physical evidence.
Judgment of conviction affirmed.
After the Justice Court denied defendant's motion to suppress the physical evidence seized at his home pursuant to a search warrant, defendant pleaded guilty to criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]). On this appeal, defendant challenges the denial of the suppression motion, contending that the warrant application failed to establish reasonable cause to believe that there was evidence of an offense at the premises to be searched.
The warrant application identified, as the evidence to be seized, "a black short handled shot gun that [defendant] said he paid to have cut down." Although the application failed specifically to allege that one or more of the shotgun's barrels were less than 18 inches long or that the shotgun's overall length was less than 26 inches (Penal Law § 265.00 [3]), the application nevertheless provided a "substantial basis" (People v Castillo, 80 NY2d 578, 585 [1992]) for concluding that reasonable cause existed to believe that the weapon constituted a proscribed firearm (Penal Law § 265.01 [1]; see e.g. People v Jennings, 279 AD2d 284 [2001]; People v McGrew, 150 AD2d 729 [1989]) and was therefore evidence of an offense (CPL 690.10, 690.40 [2]; see People v Pinchback, 82 NY2d 857, 858 [1993]; People v Bradley, 59 AD3d 806 [2009]). We also find that the information obtained from an identified informant, based on his observations of the weapon which defendant had offered to sell the informant two weeks prior to the application, was sufficiently credible, reliable, and fresh to support the reasonable cause determination. Hence, the warrant was not improperly issued. [*2]
Accordingly, the judgment of conviction is affirmed. In view of this disposition, we do not reach the People's remaining contentions.
Rudolph, P.J., Scheinkman and LaCava, JJ., concur.
Decision Date: April 07, 2009