Opinion
2012-11-21
The PEOPLE, etc., respondent, v. William CONDON, appellant.
Brian J. Davis, P.C., Garden City, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Sharon Y. Brodt of counsel; Andrew Dykens on the brief), for respondent.
Brian J. Davis, P.C., Garden City, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Sharon Y. Brodt of counsel; Andrew Dykens on the brief), for respondent.
WILLIAM F. MASTRO, J.P., PETER B. SKELOS, ANITA R. FLORIO, and THOMAS A. DICKERSON, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered June 16, 2011, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
The credibility determinations of a hearing court are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record ( see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;People v. Wilson, 96 A.D.3d 980, 981, 948 N.Y.S.2d 77;People v. Marinus, 90 A.D.3d 677, 678, 933 N.Y.S.2d 872). Here, the record supports the Supreme Court's determination to credit the testimony of the arresting officer that he approached the defendant's vehicle, which was parked on the street near a large dance club, because he observed the front seat passenger drinking from a bottle which he believed to contain alcohol. Contrary to the defendant's contention, the testimony of the arresting officer was not incredible, patently tailored to nullify constitutional objections, or otherwise unworthy of belief ( see People v. Johnson, 83 A.D.3d 733, 734, 919 N.Y.S.2d 891;People v. Cobb, 71 A.D.3d 781, 782, 898 N.Y.S.2d 557;People v. Glenn, 53 A.D.3d 622, 623, 861 N.Y.S.2d 781).
The Supreme Court also properly found, upon crediting the arresting officer's testimony, that once the front seat passenger opened his door, enabling the officer to detect the odor of marijuana and observe two plastic bags of marijuana in the center console, he had probable cause to arrest the defendant and search his car ( see People v. Carter, 60 A.D.3d 1103, 1105, 875 N.Y.S.2d 303;People v. Parris, 26 A.D.3d 393, 394, 809 N.Y.S.2d 176;People v. Cruz, 7 A.D.3d 335, 337, 777 N.Y.S.2d 66;see also People v. George, 78 A.D.3d 728, 729, 910 N.Y.S.2d 508;People v. Cirigliano, 15 A.D.3d 672, 673, 791 N.Y.S.2d 584). Since the defendant's arrest was proper, his subsequent statements to the police cannot be deemed the fruit of the poisonous tree subject to the exclusionary rule ( see People v. McClendon, 92 A.D.3d 959, 960, 939 N.Y.S.2d 530;People v. Day, 8 A.D.3d 495, 496, 778 N.Y.S.2d 513). Accordingly, the Supreme Court properly denied those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.