PEOPLE v. ALCIDE

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

The PEOPLE, etc., Respondent, v. Ivan ALCIDE, Appellant.

Decided: July 27, 1998

Before RITTER, J.P., SANTUCCI, JOY and FLORIO, JJ. Mitchell B. Maier, Monroe, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered February 18, 1997, convicting him of 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 defendant was convicted of criminal possession of a controlled substance in the fourth degree after cocaine was seized from his person during a traffic stop.   On appeal, he argues that the court erred in denying suppression of the physical evidence.

 The defendant's argument that the traffic stop was pretextual was not raised before the hearing court and is, therefore, not properly before this court on appeal (see, People v. Lebrun, 234 A.D.2d 392, 651 N.Y.S.2d 544).   In any event, the stop was not pretextual, but was, rather, permissible based upon the officers' observation of a violation of the Vehicle and Traffic Law (a broken license plate light) (see, People v. Jackson, 241 A.D.2d 557, 661 N.Y.S.2d 247;  People v. McCoy, 239 A.D.2d 437, 657 N.Y.S.2d 437;  Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89).

 Further, the defendant's argument that he was ordered out of his vehicle, rather than that he voluntarily exited the vehicle in order to scrutinize his license plate light, raised an issue of credibility that was resolved against him by the hearing court.   We find no basis to disturb the hearing court's determination (see, People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380).   In any event, assuming, arguendo, that the defendant was ordered out of the vehicle by the officers, on the facts presented, such an order would have been permissible.   Accordingly, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence (see, People v. Robinson, 74 N.Y.2d 773, 545 N.Y.S.2d 90, 543 N.E.2d 733, cert. denied 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376;  People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39;  People v. Jackson, supra).

MEMORANDUM BY THE COURT.

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