| People v Washington |
| 2013 NY Slip Op 05097 [108 AD3d 578] |
| July 3, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Terrance Washington, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Laurie G.Sapakoff, Steven A. Bender, and Richard Longworth Hecht of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Cacace, J.), rendered April 22, 2009, convicting him of criminal sale of a controlledsubstance in the third degree, criminal possession of a controlled substance in the thirddegree, criminal possession of a controlled substance in the fifth degree, and criminalpossession of a controlled substance in the seventh degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of thatbranch of the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
"The credibility determinations of a hearing court are accorded great deference onappeal, and will not be disturbed unless clearly unsupported by the record" (People v Condon, 100 AD3d920, 920 [2012]; see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Francis, 44 AD3d788, 789 [2007]). Here, the record supports the hearing court's determination tocredit the testimony of the detective who directed the arrest of the defendant that, from aconcealed position, he observed the defendant sell a quantity of crack cocaine inside thedefendant's illuminated vehicle at night, during a police surveillance investigation.Contrary to the defendant's contention, the detective's testimony was not incredible,patently tailored to overcome constitutional objections, or otherwise unworthy of belief(see People v Condon, 100 AD3d at 920; People v Johnson, 83 AD3d 733, 734 [2011]; People v Cobb, 71 AD3d781, 782 [2010]; People vGlenn, 53 AD3d 622, 623 [2008]).
The defendant argues that certain physical evidence found by the surveillancedetective inside the defendant's car was the illegal fruit of the warrantless search of thecar performed incident to his arrest and, thus, should have been suppressed pursuant tothe holding of Arizona v Gant (556 US 332 [2009]). Since the defendant did notraise this claim before the suppression court, it is unpreserved for appellate review(see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]). In anyevent, the argument is without merit, as the search of the subject car incident to thedefendant's arrest was lawful under the United States Constitution, since the credibleevidence adduced at the suppression hearing established that it was reasonable for thepolice to believe the vehicle contained evidence of "the offense of arrest" (Arizona vGant, 556 US at 343-344; see Davis v [*2]UnitedStates, 564 US —, —, 131 S Ct 2419, 2425 [2011]). Moreover, thewarrantless search of the defendant's vehicle was permissible under the New YorkConstitution, since the hearing court properly found, upon crediting the detective'stestimony, that the police had probable cause to believe the vehicle contained contrabandor evidence of a crime, pursuant to the state's automobile exception to the warrantrequirement (see People vGreen, 100 AD3d 654, 656 [2012]; People v McPherson, 89 AD3d 752, 758 [2011]).
The defendant's challenge to the legal sufficiency of the evidence is also unpreservedfor appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d at19). In any event, viewing the evidence in the light most favorable to the prosecution, wefind that his convictions of criminal sale of a controlled substance in the third degree, andcriminal possession of a controlled substance in the third, fifth, and seventh degrees,were supported by legally sufficient evidence (see People v Contes, 60 NY2d620, 621 [1983]). Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contention, the record as a whole demonstrates that hereceived effective assistance of counsel under both federal and state constitutionalstandards (see Strickland v Washington, 466 US 668 [1984]; People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147[1981]). Angiolillo, J.P., Hall, Roman and Hinds-Radix, JJ., concur.