| People v Oliver |
| 2013 NY Slip Op 01096 [103 AD3d 817] |
| February 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Stephen Oliver, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andJeffrey C. Berman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Camacho, J.), rendered March 14, 2011, convicting him of attempted criminalpossession of a controlled substance in the third degree, upon his plea of guilty, andimposing sentence. The appeal brings up for review the denial, after a hearing (Grosso,J.), of those branches of the defendant's omnibus motion which were to suppress hisstatements to law enforcement officials and physical evidence.
Ordered that the judgment is affirmed.
The hearing court properly denied those branches of the defendant's omnibus motionwhich were to suppress his statements to law enforcement officials and physicalevidence. The credibility findings of hearing courts are entitled to deference on appeal,but this Court may make its own findings of fact if it determines that the hearing courtincorrectly assessed the evidence (see People v Anderson, 91 AD3d 789 [2012]; People v Meyers, 80 AD3d715, 716 [2011]; People vRodriguez, 77 AD3d 280, 284-285 [2010]; People v O'Hare, 73 AD3d 812, 813 [2010]; Matter of Robert D., 69 AD3d714, 716-717 [2010]). Here, we cannot say that the hearing court was incorrect increditing the testimony of the People's witness at the suppression hearing. Further, thehearing court properly determined that the defendant's statements to the police, madebetween the time of the lawful stop of his vehicle and his arrest, were admissible, sincethe defendant was not then in custody (see People v Yukl, 25 NY2d 585, 589[1969], cert denied 400 US 851 [1970]; People v Brown, 92 AD3d 455, 455-456 [2012];People v McAleavey, 159 AD2d 646 [1990]; see also Howes v Fields,565 US —, —, 132 S Ct 1181, 1190 [2012]; Berkemer vMcCarty, 468 US 420, 438-439 [1984]; Miranda v Arizona, 384 US 436[1966]; People v Brown, 295 AD2d 442, 443 [2002]; cf. People v Harris, 93 AD3d58, 66-67 [2012], affd 20 NY3d 912 [2012]).
The defendant's remaining contentions are without merit. Dillon, J.P., Leventhal,Austin and Miller, JJ., concur.