| Matter of Tonay C. |
| 2014 NY Slip Op 04922 [119 AD3d 560] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 In the Matter of Tonay C., a Person Alleged to be aJuvenile Delinquent, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Judith Stern ofcounsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnensheinand Julian L. Kalkstein of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, TonayC. appeals from an order of disposition of the Family Court, Kings County (Ambrosio,J.), dated September 6, 2013, which, upon a fact-finding order of the same court datedJuly 25, 2013, made upon his admission, finding that he had committed an act which, ifcommitted by an adult, would have constituted the crime of criminal possession of afirearm, adjudged him to be a juvenile delinquent and placed him on probation for aperiod of 18 months. The appeal from the order of disposition brings up for review thefact-finding order and the denial, after a hearing (McElrath, J.), of that branch of theappellant's omnibus motion which was to suppress physical evidence.
Ordered that the order of disposition is affirmed, without costs or disbursements.
In reviewing a hearing court's factual determinations based largely upon anassessment of credibility, the determination of the trier of fact is ordinarily accorded greatweight (see Matter of RobertD., 69 AD3d 714, 716 [2010]; cf. People v Bennett, 57 AD3d 912, 912 [2008]; Peoplev Lopez, 95 AD2d 241, 252 [1983]). However, when the Appellate Division findsthat the trier of fact incorrectly assessed the evidence, "the Appellate Division has thepower to make new findings of fact" (People v Lopez, 95 AD2d at 253;see CPL 470.15). Furthermore, an appellate court is free to reject a hearingcourt's finding that suppression is not warranted "[w]here . . . an officer'stestimony at a suppression hearing betrays all appearances of having been patentlytailored to nullify constitutional objections" (Matter of Bernice J., 248 AD2d 538,539 [1998] [internal quotation marks omitted]; see Matter of Robert D., 69 AD3d 714 [2010]; People vLebron, 184 AD2d 784, 787 [1992]).
Here, the Family Court properly denied that branch of the appellant's omnibusmotion which was to suppress physical evidence. Contrary to the appellant's contention,the arresting officer's testimony at the suppression hearing that he observed the appellantsmoking marijuana in public, from a distance of approximately two car lengths, was notincredible as a matter of law. Moreover, the hearing testimony does not support theappellant's contention that the officer's testimony was a fabrication tailored to nullifyconstitutional objections (seePeople v Glenn, 53 AD3d 622, 624-625 [2008]). Thus, crediting the officer'stestimony, the police had probable cause to arrest [*2]theappellant for possession of marijuana in public (see Penal Law§ 221.10 [1]).
The petitioner also met its burden of demonstrating that the warrantless search of theappellant's book bag, incident to the lawful arrest, was proper. "All warrantless searchespresumptively are unreasonable per se," and, thus, "[w]here a warrant has not beenobtained, it is the [petitioner who has] the burden of overcoming" this presumption ofunreasonableness (People v Hodge, 44 NY2d 553, 557 [1978]; see People v Jimenez, 22NY3d 717 [2014]). The evidence adduced at the suppression hearing showed that,while the arresting officer was placing the appellant up against a wall in order toeffectuate a lawful arrest, the officer felt the "slide" of a gun when he placed his hand onthe book bag which was on the appellant's back. Under the circumstances presented here,the officer properly searched the bag, which was within the appellant's reach, andrecovered a gun (see People vShackleford, 57 AD3d 578 [2008]; see also Matter of Anthony B., 268AD2d 265 [2000]; cf. Matter of Marrhonda G., 81 NY2d 942 [1993]; Peoplev Gokey, 60 NY2d 309 [1983]). Dickerson, J.P., Leventhal, Cohen and Hinds-Radix,JJ., concur.