| People v Sylvester |
| 2015 NY Slip Op 05358 [129 AD3d 1666] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Appellant, vJoachim S. Sylvester et al., Respondents. |
Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forappellant.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of counsel), fordefendant-respondent Shateek L. Payne.
Appeal from an order of the Niagara County Court (Matthew J. Murphy, III, J.),dated April 2, 2014. The order granted the motions of defendants seeking to suppressphysical evidence and certain oral statements made to the police following a trafficstop.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: The People appeal from an order granting defendants' motionsseeking to suppress physical evidence and certain oral statements made to the policefollowing a traffic stop. The People failed to preserve for our review their contention thatdefendant Sylvester lacked standing to contest the legality of the search of the vehicle (see People v Hunter, 17 NY3d725, 726-727 [2011]). " '[A] defendant seeking to suppress evidence, on thebasis that it was obtained by means of an illegal search, must allege standing to challengethe search and, if the allegation is disputed, must establish standing' " (People v Johnson, 94 AD3d1529, 1531 [2012], lv denied 19 NY3d 974 [2012], quoting People vCarter, 86 NY2d 721, 722-723 [1995]). The People's challenge to defendantSylvester's standing, made after the proof at the suppression hearing was closed, wasuntimely (see Hunter, 17 NY3d at 727-728; see generally People v Turner, 73 AD3d 1282, 1283[2010], lv denied 15 NY3d 896 [2010]).
The People further contend that County Court erred in granting those parts ofdefendants' motions seeking to suppress physical evidence because the evidence at thesuppression hearing established the requisite reasonable suspicion authorizing the requestfor consent to search the vehicle (see People v Boler, 106 AD3d 1119, 1122 [2013]). Wereject that contention inasmuch as it is premised upon the testimony of a police witnessthat the court did not find truthful. "It is well settled that the suppression court'scredibility determinations and choice between conflicting inferences to be drawn fromthe proof are granted deference and will not be disturbed unless unsupported by therecord" (People v Esquerdo,71 AD3d 1424, 1424 [2010], lv denied 14 NY3d 887 [2010] [internalquotation marks omitted]). Here, the ruling that the request for consent to search thevehicle was unlawful was based primarily upon the court's assessment of the credibilityof the People's principal witness. The court refused to credit the testimony of the officerwho initiated the traffic stop, concluding that he "tailored his testimony to justify thesubsequent search." In our view, that credibility determination is supported by the record,and we see no basis to disturb it (see People v Howington, 96 AD3d 1440, 1441 [2012]).Present—Scudder, P.J., Smith, Sconiers, Valentino and DeJoseph, JJ.