People v Nemickas (Richard)

[*1] People v Nemickas (Richard) 2004 NY Slip Op 51436(U) Decided on November 17, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 17, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2003-980 N CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

RICHARD NEMICKAS, Appellant.

Appeal by defendant from a judgment of the District Court, Nassau County (D. Sher, J., at plea and sentence), rendered on June 11, 2003, convicting him of driving while intoxicated (Vehicle and Traffic Law § 1192 [2]) and imposing sentence. The appeal brings up for review an order (D. Jaffe, J.) denying defendant's motion to suppress certain evidence.

Judgment of conviction unanimously affirmed.

Contrary to defendant's contention, the hearing court properly determined that the police officer had probable cause to stop defendant's vehicle since a traffic infraction occurred (People v Robinson, 97 NY2d 341 [2001]). Moreover, resolution of issues of credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the hearing court and the determinations thereof are accorded great weight on appeal (see People v Gaimari, 176 NY 84 [1903]; People v Bodenburg, 7 AD3d 534 [2004]). We further find that defendant's motion to suppress certain oral statements was properly denied. The testimony adduced at the hearing established that these statements were spontaneous (People v Davis, 244 AD2d 541 [1996]) and were not the result of a custodial interrogation (see People v Famojure, 8 AD3d 295 [2004]). Moreover, there is no merit to defendant's contention that the results of the breathalyzer test should have been suppressed on the ground that the test was administered more than two hours after he was arrested. Defendant's consent to the test renders the two-hour limit (Vehicle and Traffic Law § 1194 [2] [a] [1]) inapplicable (People v Atkins, 85 NY2d 1007, 1008 [1995]; People v Casimiro, 308 AD2d 456 [2003]). Accordingly, [*2]we find no basis to disturb the determination of the hearing court.

Defendant's contention that the sentence was harsh and excessive lacks merit. The sentence was part of a negotiated plea agreement and we find no extraordinary circumstances warranting a modification of the sentence in the interest of justice (see People v Suitte, 90 AD2d 80 [1982]).
Decision Date: November 17, 2004