People v Jarvis

2014 NY Slip Op 03700 [117 AD3d 969]

May 21, 2014

Appellate Division, Second Department

As corrected through Wednesday, July 2, 2014

[*1]

The People of the State of New York,Respondent, v Floyd Jarvis, Appellant.

Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, ThomasM. Ross, and Joanna Elm of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County(Sullivan, J.), rendered March 14, 2012, convicting him of criminal possession of aweapon in the second degree and violation of Traffic Rules and Regulations of City ofNew York (34 RCNY) § 4-12 (i) (sounding the horn of a vehicle withoutdanger present), upon a jury verdict, and sentencing him to a determinate term of sixyears imprisonment followed by a period of postrelease supervision of five years. Theappeal brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress physical evidence.

Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed from a determinate term of six yearsimprisonment followed by a period of postrelease supervision of five years to adeterminate term of 41/2 years imprisonment followed by a period ofpostrelease supervision of three years; as so modified, the judgment is affirmed.

"The credibility determinations of a hearing court following a suppression hearingare accorded great deference on appeal, and will not be disturbed unless clearlyunsupported by the record" (People v Hobson, 111 AD3d 958, 959 [2013]; seePeople v Prochilo, 41 NY2d 759, 761 [1977]; People v Washington, 108 AD3d 578, 579 [2013]; People v Condon 100 AD3d920, 920 [2012]). Here, the record supports the Supreme Court's determination tocredit the arresting officer's testimony that he observed, in plain view and from hisvantage point outside the driver's door, the butt of a handgun protruding from the crevicebetween the driver's seat and the center console inside the vehicle in question. Contraryto the defendant's contention, the officer's testimony was not incredible, patently tailoredto overcome constitutional objections, or otherwise unworthy of belief (see People v Dunbar, 104AD3d 198, 216 [2013]; People v Spann, 82 AD3d 1013, 1014 [2011]; People v James, 19 AD3d617, 618 [2005]).

The sentence imposed was excessive to the extent indicated herein. Dickerson, J.P.,Leventhal, Hall and Lott, JJ., concur.