People v Nunez (Joshua)

[*1] People v Nunez (Joshua) 2014 NY Slip Op 50681(U) Decided on April 29, 2014 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 29, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Lowe, III, Shulman, JJ
570451/11.

The People of the State of New York, Respondent,

against

Joshua Nunez, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Neil E. Ross, J. at suppression hearing, plea and sentence), rendered April 27, 2011, convicting him, upon his plea of guilty, of attempted criminal possession of a controlled substance in the seventh degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Neil E. Ross, J. at suppression hearing, plea and sentence), rendered April 27, 2011, affirmed.

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 NY2d 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 NY2d 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 AD2d 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.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 29, 2014