| People v Matthews |
| 2018 NY Slip Op 01355 [159 AD3d 1043] |
| March 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Rhamel R.Matthews, Appellant. |
Norbert A. Higgins, Binghamton, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Amanda M. Clark, Law Intern), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered December 4, 2014, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a controlled substance in the second degree.
Defendant was charged by indictment with one count of criminal possession of a controlledsubstance in the second degree, one count of criminal possession of a controlled substance in thethird degree, one count of criminal possession of a weapon in the third degree and two counts ofcriminally using drug paraphernalia in the second degree after narcotic drugs, packaging material,a scale and a Colt .25 caliber pistol were recovered during a search of his residence that wasconducted pursuant to a search warrant that had been issued on April 4, 2013. The warrant wasobtained, in part, based on sworn statements provided by two confidential informants (hereinafterCIs). Defendant moved to suppress the evidence that was seized pursuant to the warrant,contending that the warrant was issued without probable cause based on false or staleinformation that had been provided by the CIs. After a Darden hearing, County Courtconcluded that the CIs had provided sworn allegations of fact to police investigators that weremade part of the application for the search warrant that provided "ample grounds for the issuanceof the search warrant."
Defendant subsequently pleaded guilty to one count of criminal possession of a controlledsubstance in the second degree and was sentenced, as a second felony offender, to a prison termof six years followed by three years of postrelease supervision. After being advised [*2]that the three-year period of postrelease supervision was unlawful,County Court permitted defendant to withdraw his guilty plea; he thereafter pleaded guilty toattempted criminal possession of a controlled substance in the second degree. Defendant wasthen sentenced to a prison term of six years followed by three years of postrelease supervision.Defendant now appeals.
Defendant asserts that the CIs provided false information about the location of his residenceand, further, that any information they provided was, or may have been, stale, because no dateswere provided for when the CIs purchased drugs from him or witnessed him in the possession ofany drugs. "[A] Darden hearing is held to ensure 'that the confidential informant bothexists and gave the police information sufficient to establish probable cause' " (People v Joseph, 27 NY3d 1009,1011 [2016], quoting People v Edwards, 95 NY2d 486, 494 [2000]). Based on our incamera review of the transcript of the Darden hearing, we are satisfied that County Courtproperly determined that the CIs existed and provided reliable and timely information thatjustified a finding that probable cause existed to issue the search warrant.
Defendant asserts that County Court should have recused itself because it had predeterminedthe suppression issue prior to conducting the Darden hearing. This argument is notpreserved for our review because defendant neither made a relevant objection nor moved forrecusal (see People v Reid, 97AD3d 1037, 1038 [2012], lv denied 19 NY3d 1104 [2012]; People v Lebron,305 AD2d 799, 800 [2003], lv denied 100 NY2d 583 [2003]).
Egan Jr., J.P., Devine, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.