| People v Williams |
| 2014 NY Slip Op 02189 [115 AD3d 1344] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vLawrence E. Williams, II, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski,A.J.), rendered May 22, 2012. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a weapon in the second degree, unlawful possession ofmarihuana and operating a motor vehicle with excessively tinted windows.
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 criminal possession of a weapon in the second degree (Penal Law §265.03 [3]), unlawful possession of marihuana (§ 221.05), and operating a motorvehicle with excessively tinted windows (Vehicle and Traffic Law § 375 [12-a] [b][2]). The conviction arises out of a lawful traffic stop of the vehicle driven by defendant(see People v Fagan, 98AD3d 1270, 1271 [2012], lv denied 20 NY3d 1061 [2013], certdenied 571 US —, 134 S Ct 262 [2013]), and a subsequent search of thevehicle after the police detected the odor of marihuana emanating therefrom (see People v Cuffie, 109 AD3d1200, 1201 [2013], lv denied 22 NY3d 1087 [2014]; see generallyPeople v Blasich, 73 NY2d 673, 678 [1989]). Defendant contends that SupremeCourt erred in refusing to suppress evidence of the marihuana and handgun found by thepolice, as well as his statements to the police. Specifically, defendant contends that theevidence before the court was not sufficient to sustain a factual determination that thevehicle driven by defendant was lawfully searched by the police officers inasmuch as thetestimony of the police officers at the suppression hearing was "contradictory,confusing[,] and ha[d] the appearance[ ] of being . . . tailored to nullifyconstitutional objections." We reject that contention. "Questions of credibility areprimarily for the suppression court to determine and its findings will be upheld unlessclearly erroneous" (People v Squier, 197 AD2d 895, 896 [1993], lvdenied 82 NY2d 904 [1993]; see generally People v Prochilo, 41 NY2d 759,761 [1977]). Here, although one of the arresting officers was unable to recall certaindetails of the traffic stop, his testimony was sufficiently corroborated by that of the otherarresting officer (see People v Walker, 155 AD2d 916, 916 [1989], lvdenied 75 NY2d 819 [1990]; see also People v Ponzo, 111 AD3d 1347, 1347 [2013])."Nothing about the officer[s'] testimony was unbelievable as a matter of law, manifestlyuntrue, physically impossible, contrary to experience, or self-contradictory" (People v James, 19 AD3d617, 618 [2005], lv denied 5 NY3d 829 [2005]). We therefore discern nobasis in the record to disturb the suppression court's credibility assessment, and weconclude that its determination is [*2]supported bysufficient evidence in the record (see generally People v Yukl, 25 NY2d 585, 588[1969], cert denied 400 US 851 [1970]; People v Lopez, 85 AD3d 1641, 1641-1642 [2011], lvdenied 17 NY3d 860 [2011]). Present—Scudder, P.J., Centra, Fahey,Peradotto and Whalen, JJ.