| People v Phillips |
| 2011 NY Slip Op 04500 [84 AD3d 1274] |
| May 24, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v HampPhillips, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B.Goodman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.),rendered October 10, 2008, convicting him of criminal possession of a weapon in the thirddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing (J. Goldberg, J.), of that branch of the defendant's omnibus motion which was tosuppress physical evidence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the testimony given by a detective at the suppressionhearing was not "manifestly untrue, physically impossible, contrary to experience, orself-contradictory" (People v James, 19 AD3d 617, 618 [2005]; see People vGlenn, 53 AD3d 622 [2008]; cf. People v Rutledge, 21 AD3d 1125 [2005];People v Lebron, 184 AD2d 784 [1992]; People v Quinones, 61 AD2d 765[1978]). Moreover, although the Appellate Division has the power to make new findings of factwhen it determines that the trier of fact has incorrectly assessed the evidence, we conclude thatthe hearing court did not incorrectly assess the detective's testimony in this case (see People vMeyers, 80 AD3d 715, 716 [2011]; People v Bennett, 57 AD3d 912, 912 [2008];cf. People v Rodriguez, 77 AD3d 280, 285 [2010]; People v O'Hare, 73 AD3d812, 813 [2010]; Matter of Robert D., 69 AD3d 714, 716-717 [2010]). Accordingly, thehearing court properly denied that branch of the defendant's omnibus motion which was tosuppress physical evidence.
Furthermore, contrary to the defendant's contention, the Supreme Court's Molineuxruling (see People v Molineux, 168 NY 264 [1901]) constituted a provident exercise ofthe court's discretion, since the evidence at issue was admissible for nonpropensity purposes andthe risk of prejudice did not outweigh the probative value (see People v Alvino, 71 NY2d233 [1987]; People v Holden, 82 AD3d 1007 [2011]; People v Augugliaro, 29AD3d 600 [2006]).
The defendant's contention that the trial counsel's failure to preserve certain claims forappellate review constituted ineffective assistance of counsel is without merit (see People vGreenlee, 70 AD3d 966 [2010]; People v Taberas, 60 AD3d 791 [2009]; Peoplev Friel, 53 AD3d 667 [2008]; People v Rose, 47 AD3d 848 [2008]).[*2]
The defendant's remaining contentions are unpreservedfor appellate review. Covello, J.P., Chambers, Lott and Miller, JJ., concur.