People v. Kelly

131 A.D.3d 484, 15 N.Y.S.3d 391

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Camacho, J.), rendered August 30, 2010, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and unlawful possession of marijuana, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing, 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 should have granted that branch of his omnibus motion which was to suppress physical evidence because the testimony of the arresting officer was incredible and patently tailored to meet constitutional objections. This contention is unpreserved for appellate review, as the defendant failed to raise this specific contention before the hearing court (see CPL 470.05 [2]; People v Vann, 92 AD3d 702 [2012]; People v Inge, 90 AD3d 675, 676 [2011]; People v Muriello, 71 AD3d 1050, 1051 [2010]; People v Rivera, 27 AD3d 489, 490 [2006]). In any event, the defendant’s contention is without merit.

At the suppression hearing, the arresting officer testified that, on August 2, 2008, at approximately 1:45 a.m., she was in an unmarked vehicle observing two groups of “kids.” Specifically, the officer’s attention was focused upon a group of four individuals, one of whom was the defendant. These individuals were standing “[t]owards the back” of a parked van. The officer indicated that she was drawn to these four individuals because she “thought they were trying to break into the vehicle.” On the opposite side of the street stood a larger group of 30 to 40 people who were “throwing bottles, yelling, [and] screaming.”

According to the officer, she then heard one gunshot coming from the direction of the four individuals, who were “huddled around each other.” The officer further testified that she “saw sparks” that sounded “like a firecracker going off” and observed smoke coming from where the four individuals were standing. She testified that, based upon her training and experience as a police officer, she was able to determine that the shot was fired from the direction of the four individuals. A couple of seconds after the first gunshot, the officer heard approximately five or six more gunshots. However, she could not determine where those shots originated.

Additional testimony was elicited from the officer that, after the first gunshot, the four individuals jumped into the van and sped away. The officer and her partner followed the van to a “housing development.” At this point, the officers exited their vehicle, with weapons drawn, directing the four individuals not to move and to raise their hands. As the officers approached the van, a codefendant stated, “[t]hose shots over there have nothing to do with us.”

At this point, the defendant and his three codefendants were removed from the van. A gun was then observed wedged in the middle console of the van. Thereafter, the defendant and his three codefendants were placed under arrest. At the precinct station house, the officer recovered marijuana from the defendant’s person.

At the conclusion of the hearing, the Supreme Court fully credited the officer’s testimony and denied that branch of the defendant’s omnibus motion which was to suppress the physical evidence.

“The credibility determinations of a hearing court following a suppression hearing are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record” (People v Hobson, 111 AD3d 958, 959 [2013]; see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Vargas, 123 AD3d 1149 [2014]; People v Mitchell, 123 AD3d 945, 945-946 [2014]; People v Jarvis, 117 AD3d 969 [2014]). Here, the officer’s testimony established that the search of the vehicle by the police was a proper warrantless search pursuant to the automobile exception, because they had probable cause to believe that it contained contraband, evidence of a crime, a weapon, or some means of escape (see People v Martin, 28 AD3d 583, 584 [2006]; see also People v Blasich, 73 NY2d 673, 678 [1989]; People v Tieman, 112 AD3d 975, 976 [2013]). Further, we find no support in the record for the defendant’s contention that the officer’s testimony was incredible as a matter of law, patently tailored to overcome constitutional objections, or otherwise unworthy of belief (see People v Mitchell, 123 AD3d at 946; People v Jarvis, 117 AD3d at 970; People v Hobson, 111 AD3d at 959; People v Dunbar, 104 AD3d 198, 216 [2013], affd 24 NY3d 304 [2014]).

The transcript of the suppression hearing, which consisted of almost 200 pages of testimony, reveals that the officer was closely and extensively examined and cross-examined by all counsel and the court. Contrary to the position of our dissenting colleague, there is no basis to disturb the Supreme Court’s determination that the officer’s testimony was credible (see People v Blake, 123 AD3d 838 [2014]). Notwithstanding the dissent’s assertions, the record establishes that the officer had a justifiable basis to think the four “huddled” individuals were trying to steal the van. The testimony was not incredible as a matter of law, as it was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory (see id.; People v Lynch, 63 AD3d 959, 961 [2009]). Any inconsistencies in the officer’s testimony did not render her testimony incredible or unreliable (see People v Blake, 123 AD3d at 839).

Contrary to the defendant’s contention, his right of confrontation (see US Const Sixth Amend) was not violated when the People were permitted to introduce evidence of DNA testing performed on swabs taken from the recovered firearm and the defendant through the People’s expert witness, who lacked firsthand knowledge of the testing. The DNA testing results, contained in a report by the Office of the Chief Medical Examiner, which was admitted into evidence, consisted of raw data and, thus, was not “testimonial” in nature (Crawford v Washington, 541 US 36, 36 [2004]; see People v Brown, 13 NY3d 332, 340 [2009]; People v Fucito, 108 AD3d 777 [2013]; People v Pitre, 108 AD3d 643, 644 [2013]). This raw data, standing alone, did not link the defendant to the crime (see People v Sanders, 118 AD3d 1029 [2014]; People v Pitre, 108 AD3d at 644; People v Washington, 108 AD3d 576, 577 [2013]; People v Dail, 69 AD3d 873, 875 [2010]). The testimony of the People’s expert witness established that she conducted the critical analysis at issue by comparing the DNA recovered from the firearm to the defendant’s DNA profile (see People v Sanders, 118 AD3d at 1030; People v Washington, 108 AD3d at 577; People v Dail, 69 AD3d at 875). Thus, the defendant’s right of confrontation was not violated by the admission of the report or the testimony of the People’s expert.

Rivera, J.P., Austin and Roman, JJ., concur.