| People v Chisholm |
| 2011 NY Slip Op 08163 [89 AD3d 859] |
| November 9, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DerekChisholm, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Josette Simmons-McGhee of counsel), for respondent.
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 seconddegree (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 marihuanain the fifth degree, after a nonjury trial, and imposing sentence, and (2) a resentence of the samecourt imposed January 13, 2009.
Ordered that the judgment and resentence are affirmed.
The Supreme Court providently exercised its discretion in denying the defendant'sapplication for a Darden hearing (see People v Darden, 34 NY2d 177 [1974]), inlight of the fact that the confidential informant appeared before the issuing magistrate and gavesworn testimony concerning the events in question (see People v Serrano, 93 NY2d 73,77 [1999]; People v Monk, 28AD3d 793, 793 [2006]). Moreover, the defendant's conclusory, unsupported assertion thatthe 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 AD2d 913, 914 [1992]).
The defendant's contentions that the evidence was legally insufficient to establish that hepossessed the weapons at issue with the intent to use them unlawfully against another, and thatthe evidence was legally insufficient to establish that he possessed certain drug paraphernaliawith [*2]the intent to package or dispense a narcotic drug orstimulant are unpreserved for appellate review. In any event, viewing the evidence in the lightmost favorable to the prosecution (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we find that it was legally sufficient toestablish 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 theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the factfinder's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).
The defendant affirmatively waived his right to challenge on appeal the admission of astipulation relating to the proposed testimony certain police chemists would offer if called at trial,since he and his attorney agreed to the entry of the stipulation (see People v Riley, 79 AD3d 911,912 [2010]; People v Stroman, 27AD3d 589, 590 [2006]).
The defendant's contention raised in point V of his pro se supplemental brief is unpreservedfor appellate review, and, in any event, is without merit. The defendant's remaining contentionsraised in his pro se supplemental brief are without merit. Dillon, J.P., Dickerson, Chambers andMiller, JJ., concur.