| People v Johnson |
| 2011 NY Slip Op 02900 [83 AD3d 733] |
| April 5, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AllanJohnson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Suzanne D. O'Hare of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered November 12, 2008, convicting him of robbery in the first degree (two counts), robberyin the second degree (two counts), assault in the second degree, assault in the third degree, andcriminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing (Demakos, J.H.O.), of those branchesof the defendant's omnibus motion which were to suppress physical evidence, identificationtestimony, and his statements to law enforcement officials.
Ordered that the judgment is modified, on the law, by vacating the conviction of assault inthe third degree, vacating the sentence imposed thereon, and dismissing that count of theindictment; as so modified, the judgment is affirmed.
The Supreme Court properly denied those branches of the defendant's motion which were tosuppress physical evidence, identification testimony, and his statements to the police on theground that the police did not have probable cause for his arrest. The record supports theSupreme Court's finding that the initial stop of the defendant's vehicle was based upon theofficer's observation of the vehicle driving at night without "two lighted head lamps" in violationof Vehicle and Traffic Law § 375 (2) (a) (1) (see People v Robinson, 97 NY2d341, 348-349 [2001]; People vContant, 77 AD3d 967, 968 [2010]; People v Hughes, 68 AD3d 894, 895 [2009]). Based on thisobservation, the officer had probable cause to believe that a traffic violation occurred so as topermit a stop of the defendant's vehicle (see People v Robinson, 97 NY2d at 349; People v Boyd, 68 AD3d 889[2009]; People v Miller, 57 AD3d568, 570 [2008]).
Moreover, the credibility determinations of a hearing court are accorded great deference onappeal and will not be disturbed unless clearly unsupported by the record (see People v Castro, 73 AD3d 800,800 [2010]; People v Tandle, 71AD3d 1176, 1178 [2010]; People vMartinez, 58 AD3d 870, 870-871 [2009]). Contrary to the defendant's contention, thetestimony of the arresting officer at the suppression hearing was not incredible or patentlytailored to nullify constitutional objections (see People v Barley, 82 AD3d 996 [2d Dept 2011]). Based on this[*2]testimony, the People established probable cause to arrest thedefendant.
As the People correctly concede, the defendant's conviction of assault in the third degreemust be vacated and that count of the indictment dismissed as an inclusory concurrent count ofassault in the second degree (see CPL 300.40 [3] [b]; Penal Law § 120.05 [2];§ 120.00 [1]). Covello, J.P., Hall, Lott and Cohen, JJ., concur.