Opinion
3359.
Decided April 15, 2004.
Judgment, Supreme Court, New York County (John E.H. Stackhouse, J.), rendered March 8, 1999, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (John A. Zadrozny of counsel), for respondent.
Before: Buckley, P.J., Tom, Sullivan, Williams, JJ.
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record ( see People v. Prochilo, 41 N.Y.2d 759, 761). There was clear and convincing evidence, including evidence offered as past recollection recorded and admitted by stipulation, establishing that defendant consented to the police entry into the car he was driving, which led to the recovery of drugs in open view ( see People v. Mitchell, 211 A.D.2d 553, lv denied 86 N.Y.2d 734).
M-1017 — People v. Robert Marshall, etc.
Motion seeking leave to file pro se supplemental brief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.