The People, etc., respondent, v. Darrell Walker, appellant. (2012)

Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Darrell Walker, appellant.

2010–05292 (Ind.No. 09–00865)

Decided: May 23, 2012

WILLIAM F. MASTRO, A.P.J. ANITA R. FLORIO CHERYL E. CHAMBERS SHERI S. ROMAN, JJ.

John F. Ryan, White Plains, N.Y. (Clare J. Degnan of counsel), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent. Contrary to the defendant's contention, the testimony at the suppression hearing was not patently incredible or unworthy of belief (see People v Rivera, 27 AD3d 489, 490). The hearing court properly found that the police had probable cause for the defendant ‘s arrest (see People v Jones, 90 N.Y.2d 835; People v McRay, 51 N.Y.2d 594, 601–602; People v Carter, 198 A.D.2d 229; People v Jones, 186 A.D.2d 681). Accordingly, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence recovered pursuant to a lawful search of the defendant (see People v Hall, 10 NY3d 303, 310,cert. denied555 U.S. 938; People v Clayton, 57 AD3d 557; People v Butler, 27 AD3d 365).

Submitted—April 20, 2012

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered April 27, 2010, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The trial court properly allowed the People to question the defendant about prior drug arrests after the defendant opened the door to that line of inquiry (see People v. Fardan, 82 N.Y.2d 638, 646).

The sentence imposed was not excessive (see CPL 470.15[2][c], [6][b]; 470.20[6]; People v. Thompson, 60 N.Y.2d 513, 519; People v. Suitte, 90 A.D.2d 80). The sentencing court providently exercised its discretion in declining to direct that the defendant be enrolled in the Comprehensive Alcohol and Substance Abuse Treatment program (see Penal Law § 60.04[6]; People v. Herring, 74 AD3d 1579).

MASTRO, A.P.J., FLORIO, CHAMBERS and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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