People v. Ellis

198 A.D.2d 90, 603 N.Y.S.2d 990, 1993 N.Y. App. Div. LEXIS 10628

Opinion

—Judgment, Supreme Court, New York County (Ira Gammerman, J., at suppression hearing; Richard Failla, J., at plea and sentence), rendered February 18, 1992, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 to 8 years, unanimously affirmed.

The testimony of the arresting officer, credited by the hearing court, that he saw defendant holding his open hand out and offering a small envelope containing vials of crack cocaine to a woman on the street, in the vicinity of the Port Authority, is not " ’manifestly untrue, physically impossible, contrary to experience, or self-contradictory’ ” (People v Garafolo, 44 AD2d 86, 88), particularly in view of the evidence that the officer approached defendant from behind and that defendant concededly was selling crack cocaine on the night in question. The questions of credibility raised by defendant’s motion to suppress are best left to the hearing court (see, People v Rosa, 179 AD2d 538, lv denied 79 NY2d 952). Concur — Murphy, P. J., Wallach, Kupferman and Asch, JJ.