Opinion
2019–14145 Ind. No. 744/16
09-14-2022
The PEOPLE, etc., respondent, v. Jevaughn WHYTE, appellant.
Raiser & Kenniff, P.C., Mineola, NY (Steven M. Raiser of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Marina Arshakyan of counsel), for respondent.
Raiser & Kenniff, P.C., Mineola, NY (Steven M. Raiser of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Marina Arshakyan of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., SHERI S. ROMAN, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), rendered November 25, 2019, convicting him of criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree (six counts), upon a jury verdict, 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.
At a suppression hearing, a police officer testified that he obtained consent to enter and search the defendant's apartment from both the defendant's father and grandmother, who were also occupants of the apartment. From a hallway inside the apartment, the officer observed, through an open door to the defendant's bedroom, firearms, large capacity magazines, and ammunition on the floor and in an unzipped duffel bag. After his arrest, the defendant confessed to purchasing and possessing the firearms. The defendant's father and grandmother both testified that they did not give the officer consent to search the apartment.
"The credibility determinations of a hearing court are accorded great deference on appeal and will not be disturbed unless clearly unsupported by the record" ( People v. Visich, 57 A.D.3d 804, 806, 870 N.Y.S.2d 376 ). " ‘The rule is that testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value, even though it is not contradicted by other testimony or evidence introduced in the case’ " ( People v. Harris, 192 A.D.3d 151, 163, 138 N.Y.S.3d 593, quoting People v. Maiwandi, 170 A.D.3d 750, 751, 95 N.Y.S.3d 361 ). Contrary to the defendant's contention, the officer's testimony was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory (see People v. Reynolds, 186 A.D.3d 1535, 1536, 129 N.Y.S.3d 495 ; People v. Barnes, 129 A.D.3d 981, 982, 11 N.Y.S.3d 669 ; People v. Glenn, 53 A.D.3d 622, 623, 861 N.Y.S.2d 781 ), nor was it patently tailored to nullify constitutional objections (see People v. Knight, 205 A.D.3d 928, 167 N.Y.S.3d 186 ; People v. Ellerbee, 203 A.D.3d 1068, 1069, 165 N.Y.S.3d 592 ). Certain complaints received by the Civilian Complaint Review Board concerning the testifying officer failed to discredit his testimony insofar as the allegations were either unsubstantiated or did not bear on the officer's credibility. To the extent that the testimony of the defense witnesses presented an issue of credibility, the Supreme Court's credibility determination is entitled to great deference on appeal and we discern no basis to disturb it (see People v. Garcia, 189 A.D.3d 879, 881, 137 N.Y.S.3d 136 ; People v. Holland, 133 A.D.3d 779, 779, 22 N.Y.S.3d 453 ; People v. Glenn, 53 A.D.3d at 625, 861 N.Y.S.2d 781 ).
Considering the totality of the circumstances, in which the officer knocked on the door of the apartment and spoke with the defendant's father in a nonconfrontational manner, the consent to search the apartment was voluntarily obtained ( People v. Quagliata, 53 A.D.3d 670, 672, 861 N.Y.S.2d 792 ; People v. DePace, 127 A.D.2d 847, 849, 511 N.Y.S.2d 950 ). Once inside and standing legally in the hallway of the apartment, the officer was able to see the firearms in plain view in the bedroom and properly seized them (see People v. Clark, 194 A.D.3d 948, 950, 149 N.Y.S.3d 174 ; People v. Velasquez, 110 A.D.3d 835, 835, 972 N.Y.S.2d 678 ). Further, given the legality of the officer's search of the defendant's apartment, the defendant's contention that his post-arrest statement to law enforcement officials should be suppressed as the product of an illegal search or seizure is without merit (see People v. Gregory, 163 A.D.3d 847, 848, 81 N.Y.S.3d 472 ).
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.
CONNOLLY, J.P., ROMAN, FORD and WAN, JJ., concur.