PEOPLE v. OLIVER

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The PEOPLE, etc., respondent, v. Stephen OLIVER, appellant.

Decided: February 20, 2013

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ. Lynn W.L. Fahey, New York, N.Y. (Janet Claire Lê of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Jeffrey C. Berman of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Camacho, J.), rendered March 14, 2011, convicting him of attempted criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Grosso, J.), of those branches of the defendant's omnibus motion which were to suppress his statements to law enforcement officials and physical evidence.

ORDERED that the judgment is affirmed.

The hearing court properly denied those branches of the defendant's omnibus motion which were to suppress his statements to law enforcement officials and physical evidence. The credibility findings of hearing courts are entitled to deference on appeal, but this Court may make its own findings of fact if it determines that the hearing court incorrectly assessed the evidence (see People v. Anderson, 91 A.D.3d 789, 937 N.Y.S.2d 109; People v. Meyers, 80 A.D.3d 715, 716, 914 N.Y.S.2d 315; People v. Rodriguez, 77 A.D.3d 280, 284–285, 907 N.Y.S.2d 294; People v. O'Hare, 73 A.D.3d 812, 813, 900 N.Y.S.2d 400; Matter of Robert D., 69 A.D.3d 714, 716–717, 892 N.Y.S.2d 523). Here, we cannot say that the hearing court was incorrect in crediting the testimony of the People's witness at the suppression hearing. Further, the hearing court properly determined that the defendant's statements to the police, made between the time of the lawful stop of his vehicle and his arrest, were admissible, since the defendant was not then in custody (see People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89; People v. Brown, 92 A.D.3d 455, 455–456, 937 N.Y.S.2d 230; People v. McAleavey, 159 A.D.2d 646, 553 N.Y.S.2d 38; see also Howes v. Fields, ––– U.S. ––––, 132 S.Ct. 1181, 1190, 182 L.Ed.2d 17; Berkemer v. McCarty, 468 U.S. 420, 438–439, 104 S.Ct. 3138, 82 L.Ed.2d 317; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Brown, 295 A.D.2d 442, 443, 743 N.Y.S.2d 554; cf. People v. Harris, 93 A.D.3d 58, 66–67, 936 N.Y.S.2d 233, affd. 20 N.Y.3d 912, 956 N.Y.S.2d 478, 980 N.E.2d 527).

The defendant's remaining contentions are without merit.

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