Opinion
No. 570451/11.
2014-04-29
The PEOPLE of the State of New York, Respondent, v. Joshua NUNEZ, Defendant–Appellant.
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record ( see People v. Prochilo, 41 N.Y.2d 759, 761 [1977] ). The officer's testimony established a lawful arrest based on, inter alia, his observation of marihuana in open view, and we do not find that testimony to be implausible or unworthy of belief. It is important to note that defendant does not now specifically assign error to the suppression court's DeBour ( People v. DeBour, 40 N.Y.2d 210 [1976] ) analysis, and instead seeks reversal of the suppression ruling solely on the basis of his disagreement with the court's favorable assessment of the arresting officer's credibility. Despite certain inconsistencies in the officer's account of the street encounter, it cannot be said that his testimony “betrays all appearances of having been patently tailored to nullify constitutional objections” (Matter of Bernice J., 248 A.D.2d 538, 539 [1998][internal quotation marks omitted] ). Thus, on this cold record, we are not prepared to substitute our judgment of the officer's credibility for that of the suppression court, which saw and heard the witness.