People v. Casey

• Decision Date: 05 April 2017
• Citation: 52 N.Y.S.3d 377,149 A.D.3d 770
• Parties: The PEOPLE, etc., respondent, v. Troy Q. CASEY, appellant.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 770

52 N.Y.S.3d 377

The PEOPLE, etc., respondent,

v.Troy Q. CASEY, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 5, 2017.

Randall D. Unger, Bayside, NY, for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, William H. Branigan, and Anish M. Patel of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and BETSY BARROS, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lopez, J.), rendered December 22, 2014, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, 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 Supreme Court did not err in denying that branch of the defendant's omnibus motion which was to suppress physical evidence. On a motion to suppress, the People bear the burden of going forward to establish the legality of police conduct in the first instance (see People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905 ; People v. Blinker, 80 A.D.3d 619, 620, 915 N.Y.S.2d 593 ; People v. James, 72 A.D.3d 844, 898 N.Y.S.2d 635 ). Once the People have met their initial burden, the defendant bears the ultimate burden of proving the illegality of the search and seizure (see People v. Grant, 83 A.D.3d 862, 863, 921 N.Y.S.2d 285 ; People v. Clough, 70 A.D.3d 474, 895 N.Y.S.2d 52 ).

Here, the hearing evidence, including a police officer's testimony that he observed a "bulge" in the defendant's pocket that caused his pants to "sag" and that appeared to be an object that was larger than a cell phone, established grounds for the officer to ask the defendant whether he had a weapon (see People v. Moret, 240 A.D.2d 321, 659 N.Y.S.2d 445 ; see also People v. Harris, 122 A.D.3d 942, 944, 997 N.Y.S.2d 481 ). The officer testified that the defendant then admitted that he possessed a gun, giving rise to reasonable suspicion for the search of the defendant's person

(see People v. De Bour, 40 N.Y.2d 210, 233, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; see also People v. Williams, 143 A.D.3d 847, 848, 39 N.Y.S.3d 482 ).

Furthermore, contrary to the defendant's contention, the Supreme Court did not err in crediting the hearing testimony of the arresting officer. The credibility determinations of a hearing court, which saw and heard the witnesses at the hearing, are entitled to deference on appeal and should not be disturbed unless clearly unsupported by the record (see People v. Wallace, 128 A.D.3d 866, 866, 7 N.Y.S.3d 610 ; People v. Davis, 103 A.D.3d 810, 811, 962 N.Y.S.2d 174 ). Here, the credibility determinations of the court were not clearly...