Opinion
February 15, 1994
Appeal from the Supreme Court, New York County (Edward Sheridan, J.).
Police stopped defendant's car on the basis of its similarity to a car described minutes before in a radio report of shots fired. The hearing court ruled, after weighing the sharply conflicting testimony of the police and defense witnesses at the suppression hearing with respect to the defendant's alleged voluntary consent to search his car, that the People had failed to meet their "`heavy burden'" of proof on that issue by "`clear and positive'" evidence (People v. Zimmerman, 101 A.D.2d 294, 295).
The hearing court plainly had doubts about the credibility of the police witnesses, and we will not substitute our own findings on credibility unless the fact findings under review are "plainly unjustified or clearly erroneous" (People v. Tempton, 192 A.D.2d 369, 370, lv denied 82 N.Y.2d 760). Our review of testimony at the suppression hearing does not warrant reversal of the hearing court's determination that the People failed to meet their burden of proof on the question of defendant's voluntary consent to the search of his car.
Concur — Carro, J.P., Ellerin, Kupferman and Rubin, JJ.