Opinion
2014-12-10
The PEOPLE, etc., respondent, v. Mario BLAKE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and John G. McCarthy of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and John G. McCarthy of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Riviezzo, J.), rendered August 23, 2011, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Parker, J.), 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 hearing court did not err in denying that branch of the defendant's omnibus motion which was to suppress a gun found in the defendant's vehicle. The police officers possessed an articulable basis for requesting information from the defendant, as the subject vehicle was double-parked and playing loud music ( see People v. Ocasio, 85 N.Y.2d 982, 985, 629 N.Y.S.2d 161, 652 N.E.2d 907; People v. Thomas, 19 A.D.3d 32, 792 N.Y.S.2d 472). Once the officers saw the gun in plain view in the vehicle, they had probable cause to arrest the defendant ( see People v. Mills, 93 A.D.3d 1198, 940 N.Y.S.2d 400; People v. Grady, 272 A.D.2d 952, 708 N.Y.S.2d 765; People v. Blyden, 239 A.D.2d 301, 658 N.Y.S.2d 22).
The hearing court's credibility determinations are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record ( see People v. Marcelle, 120 A.D.3d 833, 991 N.Y.S.2d 658; People v. Taylor, 120 A.D.3d 519, 520, 990 N.Y.S.2d 635; People v. Richardson, 118 A.D.3d 821, 987 N.Y.S.2d 224). There is no basis in the record to disturb the court's determination that the officers' testimony was credible. Contrary to the defendant's contention, the police officers' testimony was not incredible as a matter of law, as it was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory ( see Matter of Sherrod H., 116 A.D.3d 954, 983 N.Y.S.2d 812; People v. Lynch, 63 A.D.3d 959, 961, 917 N.Y.S.2d 199; People v. James, 19 A.D.3d 617, 798 N.Y.S.2d 483). Nor did any inconsistencies establish that the officers' testimony was tailored to nullify constitutional objections ( see People v. Gonzalez, 224 A.D.2d 322, 638 N.Y.S.2d 440; People v. Thomas, 175 A.D.2d 852, 573 N.Y.S.2d 420). Moreover, any inconsistencies in the officers' testimony were minor and did not render their testimony incredible or unreliable ( see People v. Parris, 70 A.D.3d 725, 726, 893 N.Y.S.2d 287; People v. Hopkins, 244 A.D.2d 357, 665 N.Y.S.2d 327).
The defendant's contention that certain comments made by the prosecutor during her summation were improper is without merit. The challenged comments were fair comment upon the evidence, responsive to arguments and theories raised in the defense summation, and remained within the broad bounds of rhetorical comment permissible in closing argument ( see People v. Wiley, 119 A.D.3d 821, 989 N.Y.S.2d 324; People v. Jean, 118 A.D.3d 1024, 987 N.Y.S.2d 630; People v. Burgos, 97 A.D.3d 689, 947 N.Y.S.2d 897).