People v. Terry

155 A.D.2d 391, 548 N.Y.S.2d 18, 1989 N.Y. App. Div. LEXIS 15065

Opinion

— Judgment of the Supreme Court, Bronx County (Elbert C. Hinkson, J.), rendered September 18, 1987, convicting defendant, after trial by jury, of robbery in the third degree and grand larceny in the third degree, and sentencing him, as a second felony offender, to concurrent terms of ZVi to 7 years and 1 Vi to 3 years, respectively, is unanimously affirmed.

Defendant contends the testimony of a police officer that defendant blurted, on being approached by the officers, "[all] I got is a bag of pot”, was incredible, as a matter of law, and could not provide an independent basis for transporting defendant to the showup scene.

One may construct a number of plausible scenarios as to what motivated the defendant to make such a spontaneous exclamation. However, it is not appropriate for us to speculate as to why he did so. The hearing court made a factual determination that the defendant voluntarily told the police that he possessed marihuana. Its conclusion is clearly supported by the record. The suppression court had the "peculiar advantages of having seen and heard the witnesses” (People v Prochilo, 41 NY2d 759, 761). Its determination is entitled to deference by us, in the absence of proof to the contrary, and should not be disturbed.

Since defendant was properly detained for the possession of the marihuana, his brief transportation to the scene of the robbery, after it was noted he fit the description of the perpetrator, was permissible (see, People v Hicks, 68 NY2d 234). Concur — Ross, J. P., Carro, Asch, Kassal and Smith, JJ.