People v. White

• Decision Date: 20 September 2017
• Citation: 153 A.D.3d 1369,61 N.Y.S.3d 603
• Parties: The PEOPLE, etc., respondent, v. Oscar WHITE, appellant.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 1369
61 N.Y.S.3d 603

The PEOPLE, etc., respondent,
v.
Oscar WHITE, appellant.

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

Sept. 20, 2017.

61 N.Y.S.3d 604

David L. Cohen, Kew Gardens, NY, for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Eric C. Washer of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered October 9, 2014, convicting him of criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing (Lopez, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence. By decision and order dated March 30, 2016, this Court remitted the matter to the Supreme Court, Queens County, for a hearing and a new determination thereafter of that branch of the defendant's omnibus motion which was to suppress physical evidence, and held the appeal in abeyance in the interim (see People v. White, 137 A.D.3d 1311, 28 N.Y.S.3d 423 ). The Supreme Court, Queens County (Paynter, J.), has now filed its report.

ORDERED that the judgment is affirmed.

On a motion by a defendant to suppress physical evidence, "the People have the burden of going forward to show the legality of the police conduct in the first instance" ( People v. Whitehurst, 25 N.Y.2d 389, 391, 306 N.Y.S.2d 673, 254 N.E.2d 905 [emphasis omitted]; see People v. Blinker, 80 A.D.3d 619, 915 N.Y.S.2d 593 ; People v. Hernandez, 40 A.D.3d 777, 778, 836 N.Y.S.2d 219 ; People v. Thomas, 291 A.D.2d 462, 463, 738 N.Y.S.2d 357 People v. Quinones, 61 A.D.2d 765, 402 N.Y.S.2d 196 ). The defendant, however, "bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him" ( People v. Thomas, 291 A.D.2d at 463, 738 N.Y.S.2d 357 ; see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 ; People v. Whitehurst, 25 N.Y.2d at 391, 306 N.Y.S.2d 673, 254 N.E.2d 905 ). " The factual

61 N.Y.S.3d 605

findings and credibility determinations of the Supreme Court following a suppression hearing are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record" ( People v. Baliukonis, 35 A.D.3d 626, 627, 829 N.Y.S.2d 112 ; see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 ; People v. Blinker, 80 A.D.3d 619, 915 N.Y.S.2d 593 ; People v. Johnson, 79 A.D.3d 905, 912 N.Y.S.2d 303 ; People v. Castro, 73...