PEOPLE v. HIERRO (2004)

Order dated October 22, 2002 (Robert E. Torres, J.) reversed, on the law and the facts, suppression motion denied and the matter remitted for further proceedings on the information.

The uncontradicted testimony of the arresting officer at the suppression hearing established that police, after observing a series of narcotics sales in front of a Bronx apartment building and receiving information that narcotics and weapons were being stored inside a specified second-floor apartment at that building, knocked on the door of the second-floor apartment and were allowed entry by defendant, who indicated that the apartment was hers.   Once inside the apartment the arresting officer observed an individual (Fernandez) who fit the description given by the “ghost” officer of the seller in the recently observed street drug sales.   The officer asked Fernandez to come downstairs and arrested him after the ghost officer made a confirmatory identification.   The arresting officer and his partner then returned to the second-floor apartment, ostensibly to get pedigree information about the apartment occupants. While speaking with the defendant in the foyer of the apartment, the officer observed, among other items, the magazine of a handgun on the top shelf of a nearby open closet.   A more thorough apartment search, authorized by defendant both orally and in writing, revealed several plastic bags containing crack cocaine.

 The unrefuted police testimony outlined above, fully credited by the Judicial Hearing Officer who presided over the suppression hearing, was not “ ‘manifestly untrue, physically impossible, contrary to experience or self-contradictory’ ” (People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500 [1974] ).   There was thus no basis for Criminal Court to reject portions of the officer's testimony as “not persuasive,” upon its independent review of the cold record (see People v. Jones, 152 Misc.2d 113, 584 N.Y.S.2d 267 [1992],appeal dismissed 80 N.Y.2d 833, 587 N.Y.S.2d 918, 600 N.E.2d 645 [1992] ).   Issues of credibility are primarily for the trier of fact given “its peculiar advantages of having seen and heard the witnesses” (People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ), and its findings should be upheld unless clearly erroneous (id.;  People v. Brown, 234 A.D.2d 211, 651 N.Y.S.2d 981 [1996], affd. 91 N.Y.2d 854, 668 N.Y.S.2d 551, 691 N.E.2d 622 [1997] ).

 Crediting the officer's plausible account of the events leading to defendant's arrest, and giving proper effect to the written consent statement defendant signed after the search was concluded (see People v. Williams, 278 A.D.2d 150, 151, 719 N.Y.S.2d 220 [2000], lv. denied 96 N.Y.2d 764, 725 N.Y.S.2d 291, 748 N.E.2d 1087 [2001] ), we find no basis to disturb the Hearing Officer's determination that defendant voluntarily consented to the police entry into the apartment, both before and after Fernandez's arrest.   Notably absent from the hearing evidence is any indication that the police ever exerted pressure on defendant or otherwise forcibly gained admittance into the apartment (see People v. Cesar, 111 A.D.2d 707, 711, 491 N.Y.S.2d 319 (1985), appeal dismissed sub nom. People v. Martinez, 67 N.Y.2d 752, 500 N.Y.S.2d 101, 490 N.E.2d 1227 [1986] ).   To the extent that the record supports a finding that the police used a ruse in the form of a feigned pedigree inquiry to induce defendant to consent to the their re-entry into the apartment after Fernandez's arrest, such deception was not “so fundamentally unfair as to constitute a denial of due process” (People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188 [1980];  see People v. Robinson, 8 A.D.3d 131, 779 N.Y.S.2d 40 [2004] ).   Moreover, the police seizure of the contraband resting on the shelf of an open closet near the apartment entranceway was authorized under the plain view doctrine (see People v. Cesar, 111 A.D.2d at 711-712, 491 N.Y.S.2d 319), or so the Hearing Officer reasonably could find.

 Defendant's present argument that the police lacked a sufficient predicate for their initial investigatory inquiry at defendant's apartment is unpreserved for appellate review (see People v. Turriago, 90 N.Y.2d 77, 83, 659 N.Y.S.2d 183, 681 N.E.2d 350 [1997] ).   In any event, the information possessed by the police as a result of their own observations of the drug transactions in front of the building and the details furnished by several sources whose reliability was unchallenged by defendant below was “clearly sufficient to provide the officers with a proper basis for making inquiry” at defendant's apartment (People v. Cesar, 111 A.D.2d at 711, 491 N.Y.S.2d 319, citing People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ).

This constitutes the decision and order of the court.

PER CURIAM.