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People v. Bush

Supreme Court of New York, Fourth Department

June 14, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
TYSHAWN BUSH, DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered March 21, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree (two counts).

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). We reject defendant's contention that the suppression court (DiTullio, J.) erred in refusing to suppress the weapons seized from the vehicle he was driving and the statements he made to police officers following his arrest. The credibility determinations of the suppression court "are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record" (People v Spann, 82 A.D.3d 1013, 1014 [internal quotation marks omitted]). Contrary to defendant's contention, the testimony of two of the police officers that they observed defendant drinking from a Budweiser beer bottle as he drove the vehicle is not incredible as a matter of law (see People v Villanueva, 137 A.D.2d 852, 853, lv denied 71 N.Y.2d 1034). Nor is the arresting officer's testimony that he observed a revolver in plain view inside the vehicle "unbelievable as a matter of law, manifestly untrue, physically impossible, contrary to experience, or self-contradictory" (People v James, 19 A.D.3d 617, 618, lv denied 5 N.Y.3d 829). The suppression court was entitled to credit the testimony of the officers (see People v Gandy, 85 A.D.3d 1595, 1596, lv denied 17 N.Y.3d 859) and, on the basis of that testimony, properly concluded that the People met their burden of establishing "the legality of the police conduct in the first instance" (People v Berrios, 28 N.Y.2d 361, 367; see Spann, 82 A.D.3d at 1014).


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