| People v Hale |
| 2015 NY Slip Op 06063 [130 AD3d 1540] |
| July 10, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTerrell Hale, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Jeremy V. Murray of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered November 19, 2013. 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,of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]), defendant contends that County Court erred in refusing tosuppress evidence on the basis that it was the fruit of an unnecessarily prolonged trafficstop. We reject that contention. The evidence at the suppression hearing established thatthe police lawfully stopped the rental vehicle being driven by defendant because it didnot have a license plate lamp, and the license plate was rendered unreadable by acovering of dirt (see Vehicle and Traffic Law §§ 375 [2] [a][4]; 402 [1]; People vBrooks, 23 AD3d 847, 848 [2005], lv denied 6 NY3d 810 [2006];People v Potter, 266 AD2d 920, 920-921 [1999], lv denied 94 NY2d 865[1999]). During their initial visit to the vehicle, the police asked to see defendant'slicense and registration, as well as the rental agreement for the vehicle. Uponexamination of those documents away from the vehicle, they concluded that defendantwas the sole occupant of the vehicle, but that he was not listed on the vehicle rentalagreement as an authorized driver of the vehicle. That conclusion provided the policewith at least "a founded suspicion that criminal activity [was] afoot" (People vHollman, 79 NY2d 181, 184 [1992]), i.e., that defendant was committing theunauthorized use of a motor vehicle in the third degree (see Penal Law§ 165.05 [1]; People v Bryant, 77 AD3d 485, 485 [2010], lvdenied 16 NY3d 829 [2011]). The police were therefore justified in returning to thevehicle a second time to inquire into the identity of the person named on the rentalagreement and whether defendant had permission to use the vehicle (see generally People v Jones,66 AD3d 1476, 1477 [2009], lv denied 13 NY3d 908 [2009]; People v Kelly, 37 AD3d866, 867 [2007], lv denied 8 NY3d 986 [2007]). During their second visit todefendant's vehicle, one of the police officers saw a gun on the floor of the vehicle,which provided the police with probable cause to arrest defendant (see People v Johnson, 114AD3d 1132, 1132 [2014], lv denied 24 NY3d 961 [2014]). We thereforeconclude that the police "did not inordinately prolong the detention beyond what wasreasonable under the circumstances" (People v Edwards, 14 NY3d 741, 742 [2010], reargdenied 14 NY3d 794 [2010]).
Contrary to defendant's further contention, the testimony from police officers at thesuppression hearing was not " 'unbelievable as a matter of law, manifestly untrue,physically impossible, contrary to experience, or self-contradictory' " (People v Bush, 107 AD3d1581, 1582 [2013], lv denied 22 NY3d 954 [2013]). " 'Thesuppression court's credibility determinations and choice between conflicting inferencesto be drawn from the proof are granted deference and will not be disturbed unlessunsupported by the record' " (People v Twillie, 28 AD3d 1236, 1237 [2006], lvdenied 7 NY3d 795 [2006]) and, here, there is no basis in the record to disturb thesuppression court's determination to credit the testimony of the police officers (seePeople v Williams, 115 AD3d [*2]1344, 1345[2014]; Bush, 107 AD3d at 1582). Present—Centra, J.P., Peradotto,Lindley, Valentino and DeJoseph, JJ.