People v. Corbin

201 A.D.2d 359, 608 N.Y.S.2d 839

Opinion

Order, Supreme Court, New York County (Edward Sheridan, J.), entered on or about April 10, 1992, which granted defendant’s motion to suppress a gun found in the trunk of his car, unanimously affirmed.

Police stopped defendant’s car on the basis of its similarity to a car described minutes before in a radio report of shots fired. The hearing court ruled, after weighing the sharply conflicting testimony of the police and defense witnesses at the suppression hearing with respect to the defendant’s alleged voluntary consent to search his car, that the People had failed to meet their " 'heavy burden’ ” of proof on that issue by " 'clear and positive’ ” evidence (People v Zimmerman, 101 AD2d 294, 295).

The hearing court plainly had doubts about the credibility of the police witnesses, and we will not substitute our own findings on credibility unless the fact findings under review are "plainly unjustified or clearly erroneous” (People v Tempton, 192 AD2d 369, 370, lv denied 82 NY2d 760). Our review of testimony at the suppression hearing does not warrant reversal of the hearing court’s determination that the People failed to meet their burden of proof on the question of defendant’s voluntary consent to the search of his car. Concur — Carro, J. P., Ellerin, Kupferman and Rubin, JJ.