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

686
KA 11-01414
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYSHAWN BUSH, DEFENDANT-APPELLANT.


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.


     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).

     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 AD3d 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 AD2d 852, 853, lv denied 71 NY2d 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 AD3d 617, 618, lv denied 5 NY3d
829). The suppression court was entitled to credit the testimony of
the officers (see People v Gandy, 85 AD3d 1595, 1596, lv denied 17
NY3d 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 NY2d 361,
                                    -2-                  686
                                                   KA 11-01414

367; see Spann, 82 AD3d at 1014).




Entered:   June 14, 2013                  Frances E. Cafarell
                                          Clerk of the Court
