People v. Granger

• Decision Date: 26 November 2014
• Citation: 122 A.D.3d 940,997 N.Y.S.2d 466,2014 N.Y. Slip Op. 08349
• Parties: The PEOPLE, etc., respondent, v. Elie GRANGER, appellant.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 940
997 N.Y.S.2d 466
2014 N.Y. Slip Op. 08349

The PEOPLE, etc., respondent
v.
Elie GRANGER, appellant.

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

Nov. 26, 2014.

997 N.Y.S.2d 467

Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.

Opinion

122 A.D.3d 940

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Zayas, J.), rendered August 9, 2011, convicting him of assault in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Buchter, J.), 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 defendant's contention that the testimony of the arresting officer at the pretrial suppression hearing was incredible and patently tailored to overcome constitutional objections is unpreserved for appellate review (see CPL 470.05[2] ; People v. Taylor, 120 A.D.3d 519, 520, 990 N.Y.S.2d 635 ). In any event, while the defendant correctly observes that there were inconsistencies in that officer's testimony, these inconsistencies did not rise to the level of rendering his testimony incredible as a matter of law or

122 A.D.3d 941

demonstrate that it was a fabrication patently tailored to meet constitutional objections (see Matter of Stephen O., 47 A.D.3d 719, 719, 848 N.Y.S.2d 889 ; People v. Gamble, 267 A.D.2d 400, 700 N.Y.S.2d 734 ). Moreover, upon the exercise of our factual review power (see Matter of Robert D., 69 A.D.3d 714, 716–717, 892 N.Y.S.2d 523 ), we conclude that the inconsistencies in the testimony presented a credibility question for the hearing court, which determination is entitled to great deference on appeal (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 ; People v. Bennett, 57 A.D.3d 912, 870 N.Y.S.2d 421 ), and we discern no basis on this record to disturb that determination. Moreover, contrary to the defendant's further contention, his arrest in the hallway of a single room residence hotel did not violate his rights under Payton v. New York , 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 ; see People v. Reynoso, 2 N.Y.3d 820, 821, 781 N.Y.S.2d 284, 814 N.E.2d 456 ; People v. Minley, 68 N.Y.2d 952, 953, 510 N.Y.S.2d 87, 502 N.E.2d 1002 ; People v. Sancho–Hernandez, 106 A.D.3d 841, 841, 965 N.Y.S.2d 526 ; People v. Cameron, 74 A.D.3d 1223, 1224, 905 N.Y.S.2d 619 ; People v. Allen, 54 A.D.3d 868, 868–869, 865 N.Y.S.2d 231. Accordingly, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence as the fruit of an illegal arrest.

The trial court did not improvidently exercise its discretion...