Opinion
2015-03-27
The PEOPLE of the State of New York, Respondent, v. Steve J. GRAY, Jr., Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
PRESENT: SMITH, J.P., VALENTINO, WHALEN, and DeJOSEPH, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ), defendant contends that County Court erred in refusing to suppress physical evidence because the testimony of the police officer who stopped him was not credible and, absent that officer's testimony, the People failed to meet their initial “ ‘burden of going forward to show the legality of the police conduct in the first instance’ ” (People v. Plumley, 111 A.D.3d 1418, 1420, 975 N.Y.S.2d 309, lv. denied22 N.Y.3d 1140, 983 N.Y.S.2d 499, 6 N.E.3d 618, quoting People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709). We reject that contention. “In reviewing a determination of the suppression court, great weight must be accorded its decision because of its ability to observe and assess the credibility of the witnesses, and its findings should not be disturbed unless clearly erroneous” (People v. Stokes, 212 A.D.2d 986, 987, 623 N.Y.S.2d 55, lv. denied86 N.Y.2d 741, 631 N.Y.S.2d 622, 655 N.E.2d 719; see People v. Mejia, 64 A.D.3d 1144, 1145, 882 N.Y.S.2d 621, lv. denied13 N.Y.3d 861, 891 N.Y.S.2d 695, 920 N.E.2d 100; see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380). Contrary to defendant's contention, the “minor discrepancies in [the] suppression hearing testimony [of the arresting officer] do not warrant disturbing the court's determination” (People v. Mills, 93 A.D.3d 1198, 1199, 940 N.Y.S.2d 400, lv. denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214), and the court's determination is not clearly erroneous. Consequently, we conclude that the People met their initial burden and, because defendant failed to meet his “ultimate burden of proving that the [seized] evidence should not be used against him” (Berrios, 28 N.Y.2d at 367, 321 N.Y.S.2d 884, 270 N.E.2d 709), the court properly refused to suppress the handgun that defendant discarded while fleeing from the police.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.