People v. Washington

• Decision Date: 03 July 2013
• Citation: 108 A.D.3d 578,2013 N.Y. Slip Op. 05097,970 N.Y.S.2d 36
• Parties: The PEOPLE, etc., respondent, v. Terrance WASHINGTON, appellant.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 578
970 N.Y.S.2d 36
2013 N.Y. Slip Op. 05097

The PEOPLE, etc., respondent,
v.
Terrance WASHINGTON, appellant.

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

July 3, 2013.

Scott B. Tulman, New York, N.Y. (Susan G. Papano of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Laurie G. Sapakoff, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and SYLVIA HINDS–RADIX, JJ.

[108 A.D.3d 578]Appeal by the defendant from a judgment of the County Court, Westchester County (Cacace, J.), rendered April 22, 2009, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, and criminal possession of a controlled [108 A.D.3d 579]substance in the seventh 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.

[970 N.Y.S.2d 37]

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” ( People v. Condon, 100 A.D.3d 920, 954 N.Y.S.2d 212;see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;People v. Francis, 44 A.D.3d 788, 789, 843 N.Y.S.2d 419). Here, the record supports the hearing court's determination to credit the testimony of the detective who directed the arrest of the defendant that, from a concealed position, he observed the defendant sell a quantity of crack cocaine inside the defendant's illuminated vehicle at night, during a police surveillance investigation. Contrary to the defendant's contention, the detective's testimony was not incredible, patently tailored to overcome constitutional objections, or otherwise unworthy of belief ( see People v. Condon, 100 A.D.3d at 920, 954 N.Y.S.2d 212;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 defendant argues that certain physical evidence found by the surveillance detective inside the defendant's car was the illegal fruit of the warrantless search of the car performed incident to his arrest and, thus, should have been suppressed pursuant to the holding of Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, ...