Opinion
June 28, 1990
Appeal from the County Court of Ulster County (Vogt, J.).
The sole question presented on this appeal is whether County Court properly denied defendant's motion to suppress certain contraband taken from his automobile during a warrantless search. The hearing testimony demonstrated that State Trooper Peggy Casey lawfully stopped defendant's speeding vehicle and, while waiting for defendant to produce his registration, noticed "a number of seeds and stems on the floor of the vehicle which [she] believed to be marijuana" and "an odor of burnt marijuana in the vehicle". An ensuing search of the vehicle disclosed quantities of marihuana and cocaine. Following County Court's denial of the motion, defendant entered a plea of guilty to the crime of criminal possession of a controlled substance in the fourth degree and was sentenced as a second felony offender to a prison term of 3 to 6 years.
Defendant's challenge to County Court's denial of his motion to suppress the contraband is without merit. County Court credited Casey's testimony that she observed marihuana in plain view and noticed the distinctive odor of marihuana, thus justifying the search of the vehicle (see, People v. Terrero, 139 A.D.2d 830, 831; People v. Chestnut, 43 A.D.2d 260, 261-262, affd 36 N.Y.2d 971). Issues of credibility are primarily for the hearing court, and its findings should be upheld unless they are clearly erroneous (see, People v. Prochilo, 41 N.Y.2d 759, 761; People v Goodrich, 126 A.D.2d 835, lv denied 69 N.Y.2d 880), given "its peculiar advantages of having seen and heard the witnesses" (People v. Prochilo, supra, at 761). Casey's testimony was not inherently improbable or incredible as a matter of law so as to lead this court to substitute its judgment for that of County Court (see, People v. Thompson, 126 A.D.2d 684, 685, lv denied 69 N.Y.2d 887; People v. Goodrich, supra). Thus, County Court properly denied suppression of the contraband.
Judgment affirmed. Mahoney, P.J., Casey, Weiss, Mercure and Harvey, JJ., concur.