        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

412
KA 11-00309
PRESENT: SMITH, J.P., VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEVE J. GRAY, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered November 22, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that County Court erred
in refusing to suppress physical evidence because the testimony of the
police officer who stopped him was not credible and, absent that
officer’s testimony, the People failed to meet their initial “ ‘burden
of going forward to show the legality of the police conduct in the
first instance’ ” (People v Plumley, 111 AD3d 1418, 1420, lv denied 22
NY3d 1140, quoting People v Berrios, 28 NY2d 361, 367). We reject
that contention. “In reviewing a determination of the suppression
court, great weight must be accorded its decision because of its
ability to observe and assess the credibility of the witnesses, and
its findings should not be disturbed unless clearly erroneous” (People
v Stokes, 212 AD2d 986, 987, lv denied 86 NY2d 741; see People v
Mejia, 64 AD3d 1144, 1145, lv denied 13 NY3d 861; see generally People
v Prochilo, 41 NY2d 759, 761). Contrary to defendant’s contention,
the “minor discrepancies in [the] suppression hearing testimony [of
the arresting officer] do not warrant disturbing the court’s
determination” (People v Mills, 93 AD3d 1198, 1199, lv denied 19 NY3d
964), and the court’s determination is not clearly erroneous.
Consequently, we conclude that the People met their initial burden
and, because defendant failed to meet his “ultimate burden of proving
that the [seized] evidence should not be used against him” (Berrios,
28 NY2d at 367), the court properly refused to suppress the handgun
                                 -2-                            412
                                                          KA 11-00309

that defendant discarded while fleeing from the police.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
