People v. Glenn

53 A.D.3d 622, 861 N.Y.S.2d 781

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 22, 2008
• Status: Published

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered February 9, 2006, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, and upon the recommendation of a Judicial Hearing Officer (Demakos, J.H.O.), of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

At the suppression hearing, the arresting detective (hereinafter the detective) testified that on December 15, 2004, at 10:40 a.m., he observed the defendant exit a white vehicle, walk around to the passenger side of that vehicle, open the passenger side door, and converse with a man who was standing on the adjacent sidewalk. According to the detective, the passenger side door remained ajar as the defendant and the other man conversed. At this point, the detective observed the defendant holding a clear plastic ziplock bag which he believed contained marijuana. Although the detective admitted that there were four traffic lanes and one parking lane separating him from the defendant, the detective unequivocally testified that he could see from his vantage point the defendant holding the plastic bag containing what he believed was marijuana. Thereupon, the detective approached the defendant and placed him under arrest. The detective then looked through the open passenger side door and observed a gun inside the open glove compartment. A subsequent search of the trunk revealed two boxes of ammunition.

The defendant and two of his friends also testified at the suppression hearing. In this regard, the defendant denied holding the marijuana bag in his hands and asserted that after he exited his vehicle, he closed and locked the car doors.

Following the suppression hearing, the hearing court found the testimony of the detective credible and denied that branch of the defendant’s omnibus motion which was to suppress physical evidence.

The credibility determinations of a hearing court are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record (see People v Bhattacharjee, 51 AD3d 684 [2008]; People v Wynter, 48 AD3d 492 [2008]; People v Hay, 37 AD3d 494 [2007]; People v Edwards, 29 AD3d 818 [2006]; People v Brown, 24 AD3d 565, 566 [2005]; People v Parker, 306 AD2d 543 [2003]) . Here, the record amply supports the hearing court’s determination to credit the testimony of the detective that he observed the defendant holding a plastic bag which he reasonably believed contained marijuana and that the gun was in plain view (see People v Edwards, 29 AD3d at 818-819).

Contrary to the defendant’s contention and our dissenting colleague’s view, “[n]othing about the [detective’s] testimony was unbelievable as a matter of law, manifestly untrue, physically impossible, contrary to experience, or self-contradictory” (People v James, 19 AD3d 617, 618 [2005]). We disagree with the dissent’s assertion that the testimony of the detective was illogical and that, to credit his testimony, “one would have to believe that he had X-ray vision.” The detective, who, at the time of the hearing, had over 13 years of experience on the police force and was assigned to narcotics “buy and bust” operations, unequivocally testified regarding his observations of the defendant’s actions, the marijuana, and the gun. Notwithstanding defense counsel’s vigorous cross-examination, the detective remained consistent and steadfast regarding his observations.

The hearing court was in the best position to observe the demeanor, evaluate the testimony, and assess the credibility of all of the witnesses, including the detective and the defendant. To the extent that there may have been certain inconsistencies between the detective’s hearing testimony and the criminal court complaint and arrest report, the hearing court was fully apprised thereof. Simply stated, the evidence presented an issue of credibility. In this regard, the hearing court’s credibility determination is entitled to great weight on appeal (see People v Prochilo, 41 NY2d 759, 761 [1977]), and we discern no basis to disturb it.

Several of the cases relied upon by the dissent are distinguishable. For example, in People v Lebron (184 AD2d 784 [1992]), this Court found that the hearing court erred in denying suppression where the arresting officer concededly made several false statements to his superiors about the material facts of his encounter with the defendant, and his testimony was “so improbable as to be inherently unworthy of belief’ (id. at 785). In Lebron, this Court concluded that the officer’s testimony that he was able to see into the defendant’s six or seven-inch deep pocket and observe a metal object strained credulity. Similarly, in People v Quinones (61 AD2d 765 [1978]), the Appellate Division, First Department, rejected the testimony of a police officer, finding it to be “incredible as a matter of law.” In that case, it appears that the officer did not testify truthfully when he stated that he came to the scene in response to a radio communication. Moreover, although the officer testified that he was the first on the scene in response to the communication informing that “men with shotguns were in the lobby,” he nevertheless stated that he did not have his weapon drawn when he approached the building. In contrast to the facts in Lebrón and Quinones, the testimony of the detective in the instant matter was neither incredible as a matter of law nor “patently tailored to nullify constitutional objections” (People v Brown, 24 AD3d 565, 566 [2005]).

Accordingly, the hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress physical evidence. Rivera, J.E, Miller and Dillon, JJ., concur.

Belen, J., dissents, and votes to reverse the judgment, grant that branch of the defendant’s omnibus motion which was to suppress physical evidence, and dismiss the indictment, with the following memorandum.