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THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. STEVE J. GRAY, JR., DEFENDANT–APPELLANT.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal 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] ), defendant contends that County Court erred in refusing to suppress physical evidence because the testimony of the police officer who stopped him was not credible and, absent that officer's testimony, the People failed to meet their initial “ ‘burden of going forward to show the legality of the police conduct in the first instance’ “ (People v. Plumley, 111 AD3d 1418, 1420, lv denied 22 NY3d 1140, quoting People v. Berrios, 28 N.Y.2d 361, 367). We reject that contention. “In reviewing a determination of the suppression court, great weight must be accorded its decision because of its ability to observe and assess the credibility of the witnesses, and its findings should not be disturbed unless clearly erroneous” (People v. Stokes, 212 A.D.2d 986, 987, lv denied 86 N.Y.2d 741; see People v. Mejia, 64 AD3d 1144, 1145, lv denied 13 NY3d 861; see generally People v. Prochilo, 41 N.Y.2d 759, 761). Contrary to defendant's contention, the “minor discrepancies in [the] suppression hearing testimony [of the arresting officer] do not warrant disturbing the court's determination” (People v. Mills, 93 AD3d 1198, 1199, lv denied 19 NY3d 964), and the court's determination is not clearly erroneous. Consequently, we conclude that the People met their initial burden and, because defendant failed to meet his “ultimate burden of proving that the [seized] evidence should not be used against him” (Berrios, 28 N.Y.2d at 367), the court properly refused to suppress the handgun
that defendant discarded while fleeing from the police.
Frances E. Cafarell
Clerk of the Court
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Docket No: KA 11–00309
Decided: March 27, 2015
Court: Supreme Court, Appellate Division, Fourth Department.
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