| People v Bush |
| 2013 NY Slip Op 04504 [107 AD3d 1581] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vTyshawn Bush, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered March 21, 2011. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of two counts of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). We reject defendant's contention that the suppression court(DiTullio, J.) erred in refusing to suppress the weapons seized from the vehicle he wasdriving and the statements he made to police officers following his arrest. The credibilitydeterminations of the suppression court "are entitled to great deference on appeal andwill not be disturbed unless clearly unsupported by the record" (People v Spann, 82 AD3d1013, 1014 [2011] [internal quotation marks omitted]). Contrary to defendant'scontention, the testimony of two of the police officers that they observed defendantdrinking from a Budweiser beer bottle as he drove the vehicle is not incredible as amatter of law (see People v Villanueva, 137 AD2d 852, 853 [1988], lvdenied 71 NY2d 1034 [1988]). Nor is the arresting officer's testimony that heobserved a revolver in plain view inside the vehicle "unbelievable as a matter of law,manifestly untrue, physically impossible, contrary to experience, or self-contradictory"(People v James, 19 AD3d617, 618 [2005], lv denied 5 NY3d 829 [2005]). The suppression court wasentitled to credit the testimony of the officers (see People v Gandy, 85 AD3d 1595, 1596 [2011], lvdenied 17 NY3d 859 [2011]) and, on the basis of that testimony, properly concludedthat the People met their burden of establishing "the legality of the police conduct in thefirst instance" (People v Berrios, 28 NY2d 361, 367 [1971]; see Spann,82 AD3d at 1014). Present—Scudder, P.J., Peradotto, Lindley and Sconiers, JJ.