People v. Barnes

129 A.D.3d 981, 11 N.Y.S.3d 669

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered August 18, 2011, convicting him of criminal possession of a weapon in the second degree and possession of burglar’s tools, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Gavrin, J.), of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

The defendant contends that the hearing court improperly denied that branch of his omnibus motion which was to suppress physical evidence retrieved from the trunk of his vehicle during a traffic stop because the testimony of the police officers at the pretrial suppression hearing that he voluntarily opened his trunk was incredible and patently tailored to overcome constitutional objections. Contrary to the People’s contention, the defendant preserved this argument for appellate review by, inter alia, specifically challenging the testimony of the police officers and arguing at the hearing that the testimony of the respective police officers was irreconcilable and inconsistent, and conflicted with testimony given before the grand jury (cf. People v Taylor, 120 AD3d 519, 520 [2014]; People v Inge, 90 AD3d 675 [2011]).

Nevertheless, the hearing court did not err in denying that branch of the defendant’s omnibus motion which was to suppress the physical evidence. “The credibility determinations of a hearing court are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record” (People v Taylor, 120 AD3d at 520 [internal quotation marks omitted]; see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Richardson, 118 AD3d 821 [2014]; People v Louis, 99 AD3d 725 [2012]). Contrary to the defendant’s contention, the respective testimony of the police officers was not incredible as a matter of law, as it was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory (see Matter of Sherrod H., 116 AD3d 954 [2014]; People v Lynch, 63 AD3d 959 [2009]; People v James, 19 AD3d 617 [2005]). Moreover, in exercising our factual review power, we find no basis in the record to disturb the hearing court’s credibility determination (see People v Granger, 122 AD3d 940 [2014]). Any inconsistencies in the officers’ testimony did not establish that the testimony was tailored to nullify constitutional objections and did not render the testimony incredible or unreliable (see People v Blake, 123 AD3d 838 [2014]; People v Hopkins, 244 AD2d 357 [1997]; People v Gonzalez, 224 AD2d 322 [1996]; People v Thomas, 175 AD2d 852 [1991]).

Mastro, J.P., Dickerson and Maltese, JJ., concur.