| People v Meyers |
| 2011 NY Slip Op 00399 [80 AD3d 715] |
| January 18, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ShirelleMeyers, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss and Andrew R.Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.),rendered May 11, 2009, convicting him of criminal possession of a weapon in the second degree,criminal possession of a weapon in the third degree, and false personation, upon his plea of guilty, andimposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant was indicted, inter alia, for criminal possession of a weapon in the second degree.After a suppression hearing, the County Court denied that branch of the defendant's omnibus motionwhich was to suppress physical evidence. Subsequently, the defendant pleaded guilty to, among otherthings, criminal possession of a weapon in the second degree. On appeal, the defendant contends thatthe inventory search of the vehicle in which he was riding prior to his arrest was unlawful.
In reviewing a hearing court's factual determinations based largely upon an assessment ofcredibility, the determination of the trier of fact is ordinarily accorded great weight (see People v Bennett, 57 AD3d 912[2008]; People v Lopez, 95 AD2d 241 [1983]; cf. Matter of Robert D., 69 AD3d 714, 716-717 [2010]). However,when the trier of fact has incorrectly assessed the evidence, the Appellate Division has the power tomake new findings of fact (see People vRodriguez, 77 AD3d 280, 285 [2010]; People v O'Hare, 73 AD3d 812 [2010]; Matter of Robert D., 69 AD3d 714,717 [2010]). Here, the County Court properly determined that the inventory search was conductedpursuant to a police procedure which was rationally designed to meet the objectives justifying such asearch and which effectively limited the searching officer's discretion so as to assure that the police werenot merely rummaging for incriminating evidence (see People v Galak, 80 NY2d 715[1993]; People v Tandle, 71 AD3d1176, 1178 [2010]; People vBanton, 28 AD3d 571, 572 [2006]; People v Kearney, 288 AD2d 398 [2001]).Accordingly, the County Court properly denied that branch of the defendant's omnibus motion whichwas to suppress physical evidence. Skelos, J.P., Balkin, Leventhal and Sgroi, JJ., concur.