PEOPLE v. HENRY (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered September 24, 1997, convicting him of criminal possession of a weapon in the third degree (two counts), after a nonjury trial, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion that was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 In general, the legality of a search or seizure is to be measured by the objective circumstances, and not by the subjective motivation of the officer (see, Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89;  People v. Sira, 254 A.D.2d 311, 680 N.Y.S.2d 101;  People v. Alcide, 252 A.D.2d 591, 676 N.Y.S.2d 216;  People v. Dougherty, 251 A.D.2d 344, 673 N.Y.S.2d 742, People v. Gelley, 242 A.D.2d 277, 660 N.Y.S.2d 588;  People v. Reynolds, 240 A.D.2d 517, 658 N.Y.S.2d 433;  People v. McCoy, 239 A.D.2d 437, 657 N.Y.S.2d 437).   Here, the stop of the defendant's vehicle was objectively valid based on the officer's personal observation of a traffic violation, namely, that the vehicle did not have its headlights on at 11:40 P.M., and “is no less valid merely because the officer might also have been entertaining more serious suspicions” (People v. Dougherty, supra, at 345, 673 N.Y.S.2d 742;  see, Whren v. United States, supra;  People v. Blasich, 73 N.Y.2d 673, 543 N.Y.S.2d 40, 541 N.E.2d 40;  People v. Adams, 53 N.Y.2d 1, 10-11, 439 N.Y.S.2d 877, 422 N.E.2d 537, cert. denied 454 U.S. 854, 102 S.Ct. 301, 70 L.Ed.2d 148;  People v. McCoy, supra, at 439, 657 N.Y.S.2d 437).   Under the circumstances, there is no merit to the defendant's suggestion that the stop of the vehicle was racially motivated and therefore constituted an equal protection violation.

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).   Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact, who saw and heard the witness (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).   On this record, there is no basis to disturb the trial court's determination.

MEMORANDUM BY THE COURT.