| People v Lewis |
| 2013 NY Slip Op 04359 [107 AD3d 826] |
| June 12, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nathaniel Lewis, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Zayas, J.), rendered April 19, 2011, convicting him of criminal possession of a weaponin the second degree, upon a jury verdict, and imposing sentence. The appeal brings upfor review the denial (Hanophy, J.), after a hearing, of that branch of the defendant'somnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The Supreme Court properly denied that branch of the defendant's omnibus motionwhich was to suppress the gun recovered from his person during a traffic stop. Contraryto the defendant's contention, the police officer's testimony at the hearing on June 22,2010, that he observed an ammunition magazine in plain view inside the vehicle inwhich the defendant was a passenger, after stopping the vehicle for a traffic violation,was not incredible as a matter of law and did not appear to have been patently tailored tonullify constitutional objections (see People v Barley, 82 AD3d 996, 997 [2011]; People v Coles, 62 AD3d1022, 1022-1023 [2009]; People v James, 19 AD3d 617, 618 [2005]). Moreover,although, upon the exercise of our factual review power, this Court may make its ownfindings of fact if it determines that the hearing court incorrectly assessed the evidence(see People v Anderson, 91AD3d 789 [2012]; People vMeyers, 80 AD3d 715, 716 [2011]; People v Rodriguez, 77 AD3d 280, 284-285 [2010]; People v O'Hare, 73 AD3d812, 813 [2010]; Matter ofRobert D., 69 AD3d 714, 716-717 [2010]), we cannot say that the hearing courtwas incorrect in crediting the police officer's testimony (see People v Dunbar, 104AD3d 198 [2013]; People vWilson, 96 AD3d 980, 981 [2012]; People v McClendon, 92 AD3d 959, 960 [2012]).
The defendant's contention that the Supreme Court improperly reopened the hearingis unpreserved for appellate review. In any event, since the officer's testimony at theinitial hearing established that the police had the necessary reasonable suspicion to justifythe challenged pat-down search of the defendant (see CPL 140.50 [3]; Peoplev Batista, 88 NY2d 650, 654 [1996]; People v Ragland, 156 AD2d 953[1989]; People v Walker, 151 AD2d 794 [1989]), we need not reach thiscontention (see People vWilliams, 45 AD3d 269, 269-270 [2007]).[*2]
The defendant's remaining contention is withoutmerit. Dillon, J.P., Chambers, Sgroi and Miller, JJ., concur.
[Recalled and vacated, see 117 AD3d 751.]