| People v Clough |
| 2010 NY Slip Op 01064 [70 AD3d 474] |
| February 11, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v RussellClough, Respondent. |
—[*1]
Order, Supreme Court, New York County (Charles J. Tejada, J.), entered on or about June 9,2008, which, to the extent appealed from, granted defendant's motion to suppress that portion ofthe physical evidence seized following his arrest, and dismissed the corresponding counts of theindictment, unanimously affirmed.
Although the People seek to justify the search at issue under the automobile exception to thewarrant requirement, the only evidence that such a search actually occurred was expresslydiscredited by the hearing court.
"The hearing court plainly had doubts about the credibility of the police witness[ ], and wewill not substitute our own findings on credibility unless the fact findings under review areplainly unjustified or clearly erroneous" (People v Corbin, 201 AD2d 359 [1994][internal quotation marks omitted]). "[M]uch weight must be accorded the determination of thesuppression court with its peculiar advantages of having seen and heard the witnesses"(People v Prochilo, 41 NY2d 759, 761 [1977]).
While a defendant who challenges a search and seizure has the ultimate burden of provingillegality, the People have the burden of going forward to show the legality of the police conductin the first instance (People v Berrios, 28 NY2d 361, 367 [1971]), and that burden cannotbe met by testimony that the hearing court finds incredible (id. at 369). Accordingly, thePeople failed to satisfy their initial burden.[*2]
We have considered and rejected the People's remainingarguments. Concur—Mazzarelli, J.P., Acosta, Renwick and Freedman, JJ.