| People v Lewis |
| 2014 NY Slip Op 03278 [117 AD3d 751] |
| May 7, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Nathaniel Lewis, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Danielle S. Fenn of counsel), for respondent.
Motion by the appellant for leave to reargue an appeal from a judgment of theSupreme Court, Queens County, rendered April 19, 2011, which was determined bydecision and order of this Court dated June 12, 2013.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, it is
Ordered that the motion is granted and, upon reargument, the decision and order ofthis Court dated June 12, 2013 (People v Lewis, 107 AD3d 826 [2013]), is recalled andvacated, and the following decision and order is substituted therefor:
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. Thedefendant's contention that the Supreme Court improperly reopened the suppressionhearing is unpreserved for appellate review (see CPL 470.05 [2]; People vRosales, 216 AD2d 162, 162 [1995]). In any event, although the Supreme Courterred in reopening the hearing after initially stating from the bench that the defendant'smotion to suppress physical evidence was granted (see People v Kevin W., 22 NY3d 287 [2013]; People vHavelka, 45 NY2d 636, 643-644 [1978]; cf. People v Boone, 30 AD3d 535, 535 [2006]), reversal isnot required under the particular circumstances of this case, since the defendant was notprejudiced by the error (see generally People v McGilvary, 204 AD2d 1043[1994]). The brief testimony of a police officer presented by the People at the reopenedhearing was virtually identical to a portion of the same officer's testimony at the earlierhearing. Thus, the error in reopening the suppression hearing [*2]could not reasonably have affected the Supreme Court'sdecision, in effect, upon reconsideration of the evidence at the initial hearing, to deny thedefendant's motion to suppress the physical evidence (see People v Wheeler, 32AD3d 1107 [2006]).
Upon reconsideration of the evidence, the Supreme Court properly concluded thatsuppression was not warranted. Contrary to the defendant's contention, the policeofficer's testimony at the suppression hearing that he observed an ammunition magazinein plain view inside the vehicle in which the defendant was a passenger, after stoppingthe vehicle for a traffic violation, was not incredible and did not appear to have beenpatently tailored to nullify 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]). Although,upon the exercise of our factual review power, this Court may make its own findings offact 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 Wilson, 96 AD3d980, 981 [2012]; People vMcClendon, 92 AD3d 959, 960 [2012]).
Moreover, defense counsel's single error in failing to object to the Supreme Court'sdecision to reopen the hearing was not "sufficiently egregious and prejudicial as tocompromise [the] defendant's right to a fair trial" and, thus, did not render counsel'sperformance ineffective (Peoplev Caban, 5 NY3d 143, 152 [2005]; see People v Arroyo, 38 AD3d 792, 792 [2007]). Dillon,J.P., Chambers, Sgroi and Miller, JJ., concur.