People v. Cole

• Decision Date: 28 June 2011
• Parties: The PEOPLE, etc., respondent,v.Ronnie COLE, appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1198
926 N.Y.S.2d 163
2011 N.Y. Slip Op. 05730

The PEOPLE, etc., respondent,
v.
Ronnie COLE, appellant.

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

June 28, 2011.

[926 N.Y.S.2d 164]

Gary E. Eisenberg, New City, N.Y., for appellant.William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.WILLIAM F. MASTRO, J.P., ARIEL E. BELEN, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

[85 A.D.3d 1198] Appeal by the defendant from a judgment of the Supreme Court, Dutchess County (Hayes, J.), rendered October 22, 2008, convicting him of attempted promoting prison contraband in the first degree, upon his plea of guilty, 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.

When a defendant moves to suppress physical evidence, the People have the burden of going forward and demonstrating the legality of the police conduct ( see [85 A.D.3d 1199] People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905; People v. Spann, 82 A.D.3d 1013, 1014, 918 N.Y.S.2d 588). The defendant, however, bears the ultimate burden of proving, by a preponderance of evidence, that the evidence should not be used against him ( see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709; People v. Spann, 82 A.D.3d at 1014, 918 N.Y.S.2d 588). The hearing court's determination as to witness credibility is accorded great weight on appeal, as it saw and heard the witnesses, and its determination will not be disturbed unless clearly unsupported by the evidence ( see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Barley, 82 A.D.3d 996, 997, 919 N.Y.S.2d 86).

Prison inmates do not forfeit all constitutional protections by virtue of their convictions and incarcerations ( see Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447). However, in reviewing challenges to prison regulations and conditions, “[c]ourts must be sensitive to the State's interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals” ( Brown v. Plata, ––– U.S. ––––, 131 S.Ct. 1910, 1929, 179 L.Ed.2d 969 [2011]; see People v. McKanney, 56 A.D.3d 1049, 1050,...