Opinion
November 13, 2000.
Appeal from Judgment of Ontario County Court, Harvey, J. — Criminal Possession Controlled Substance, 3rd Degree.
PRESENT: PIGOTT, JR., P. J., WISNER, KEHOE AND BALIO, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him of criminal possession of a controlled substance in the third degree (Penal Law § 220.16), criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09), unlawful possession of marihuana (Penal Law § 221.05), and harassment in the second degree (Penal Law § 240.26). Defendant contends that County Court erred in denying his motion to suppress drugs and money seized from his person during a search incident to his arrest for harassment. Defendant contends that the arrest was illegal because the alleged acts of harassment occurred outside the
presence of the arresting officers. Additionally, defendant contends that the sentencing court erred in subjecting defendant to a "permanent order of protection" upon his conviction of harassment.
Defendant's motion to suppress was properly denied. Based on the testimony at the suppression hearing, the court properly found that the arrest was made not by the officers, but by the complainant ( see, CPL 140.30 [b]; see also, CPL 140.35, [2]; 140.40 [1]; People v. Foster, 10 N.Y.2d 99, 102-103, rearg denied 11 N.Y.2d 888, cert denied 371 U.S. 881). The suppression court has the particular advantage of seeing and hearing the witnesses ( see, People v. Mitchell, 255 A.D.2d 979, lv denied 92 N.Y.2d 1052), and its determination of credibility is entitled to great weight ( see, People v. Lapp, 258 A.D.2d 926, 927, lv denied 93 N.Y.2d 1021).
We note that an order of protection entered upon a conviction of a violation shall not exceed one year from the date of conviction ( see, CPL 530.13). Here, the order of protection must be deemed to relate only to the violation of harassment in the second degree because that is the only offense for which there was a victim ( cf., People v. Travis OO., 237 A.D.2d 646, 648; People v. Debo, 234 A.D.2d 944, 945, lv denied 89 N.Y.2d 984). Therefore, the order of protection must be amended to provide for an expiration date of June 16, 2000 ( see, People v. Gibbons, 270 A.D.2d 937; People v. Wheeler, 268 A.D.2d 448, 449, lv denied 94 N.Y.2d 926; People v. Nunez, 267 A.D.2d 1050, 1051, lv denied 94 N.Y.2d 905).