PEOPLE v. ROSARIO (2022)

Supreme Court, Appellate Term, New York,

The PEOPLE of the State of New York, Respondent, v. Marcos ROSARIO, Defendant-Appellant.

570042 /16

Decided: February 17, 2022

PRESENT: Edmead, P.J., Brigantti, Silvera, JJ.

Judgment of conviction (Erika M. Edwards, J.), rendered November 18, 2015, affirmed.

The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). The unrebutted police testimony, which was credited by the court, that defendant, whose vehicle was stopped at a red light at 12:45 a.m., was drinking a “Nutcracker,” a homemade alcoholic drink that the officer was familiar with based on his training and experience, provided the reasonable suspicion necessary to justify the limited intrusion involved in an automobile stop (see People v Hinshaw, 35 NY3d 427, 430 [2020]). The determination of the hearing court, which actually saw and heard the witness testify, is entitled to deference, and it is not our practice to substitute our own fact-findings for those under review unless the latter are plainly unjustified or clearly erroneous (see People v Martin, 112 AD3d 453, 434 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur

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