| People v Gray |
| 2015 NY Slip Op 02649 [126 AD3d 1541] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vSteve J. Gray, Jr., Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.),rendered November 22, 2010. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]), defendant contends that County Court erred in refusing to suppress physicalevidence because the testimony of the police officer who stopped him was not credibleand, absent that officer's testimony, the People failed to meet their initial" 'burden of going forward to show the legality of the police conduct in the firstinstance' " (People vPlumley, 111 AD3d 1418, 1420 [2013], lv denied 22 NY3d 1140[2014], quoting People v Berrios, 28 NY2d 361, 367 [1971]). We reject thatcontention. "In reviewing a determination of the suppression court, great weight must beaccorded its decision because of its ability to observe and assess the credibility of thewitnesses, and its findings should not be disturbed unless clearly erroneous" (Peoplev Stokes, 212 AD2d 986, 987 [1995], lv denied 86 NY2d 741 [1995]; see People v Mejia, 64 AD3d1144, 1145 [2009], lv denied 13 NY3d 861 [2009]; see generally Peoplev Prochilo, 41 NY2d 759, 761 [1977]). Contrary to defendant's contention, the"minor discrepancies in [the] suppression hearing testimony [of the arresting officer] donot warrant disturbing the court's determination" (People v Mills, 93 AD3d 1198, 1199 [2012], lvdenied 19 NY3d 964 [2012]), and the court's determination is not clearly erroneous.Consequently, we conclude that the People met their initial burden and, becausedefendant failed to meet his "ultimate burden of proving that the [seized] evidenceshould not be used against him" (Berrios, 28 NY2d at 367), the court properlyrefused to suppress the handgun that defendant discarded while fleeing from the police.Present—Smith, J.P., Valentino, Whalen and DeJoseph, JJ.