THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. LAWRENCE WILLIAMS II DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ), unlawful possession of marihuana (§ 221.05), and operating a motor vehicle with excessively tinted windows (Vehicle and Traffic Law § 375 [12–a] [b][2] ).   The conviction arises out of a lawful traffic stop of the vehicle driven by defendant (see People v. Fagan, 98 AD3d 1270, 1271, lv denied 20 NY3d 1061, cert denied _ U.S. _, 134 S Ct 262), and a subsequent search of the vehicle after the police detected the odor of marihuana emanating therefrom (see People v. Cuffie, 109 AD3d 1200, 1201, lv denied 22 NY3d 1087;  see generally People v. Blasich, 73 N.Y.2d 673, 678).   Defendant contends that Supreme Court erred in refusing to suppress evidence of the marihuana and handgun found by the police, as well as his statements to the police.   Specifically, defendant contends that the evidence before the court was not sufficient to sustain a factual determination that the vehicle driven by defendant was lawfully searched by the police officers inasmuch as the testimony of the police officers at the suppression hearing was “contradictory, confusing[,] and ha[d] the appearance[ ] of being ․ tailored to nullify constitutional objections.”   We reject that contention.  “Questions of credibility are primarily for the suppression court to determine and its findings will be upheld unless clearly erroneous” (People v. Squier, 197 A.D.2d 895, 896, lv denied 82 N.Y.2d 904;  see generally People v. Prochilo, 41 N.Y.2d 759, 761).   Here, although one of the arresting officers was unable to recall certain details of the traffic stop, his testimony was sufficiently corroborated by that of the other arresting officer (see People v. Walker, 155 A.D.2d 916, 916, lv denied 75 N.Y.2d 819;  see also People v. Ponzo, 111 AD3d 1347, 1347).  “Nothing about the officer[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, lv denied 5 NY3d 829).   We therefore discern no basis in the record to disturb the suppression court's credibility assessment, and we conclude that its determination is supported by sufficient evidence in the record (see generally People v. Yukl, 25 N.Y.2d 585, 588, cert denied 400 U.S. 851;  People v. Lopez, 85 AD3d 1641, 1641–1642, lv denied 17 NY3d 860).

Frances E. Cafarell

Clerk of the Court