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

716
KA 14-00566
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRELL HALE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (JEREMY V. MURRAY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered November 19, 2013. 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 evidence on the basis that it was the
fruit of an unnecessarily prolonged traffic stop. We reject that
contention. The evidence at the suppression hearing established that
the police lawfully stopped the rental vehicle being driven by
defendant because it did not have a license plate lamp, and the
license plate was rendered unreadable by a covering of dirt (see
Vehicle and Traffic Law §§ 375 [2] [a] [4]; 402 [1]; People v Brooks,
23 AD3d 847, 848, lv denied 6 NY3d 810; People v Potter, 266 AD2d 920,
920-921, lv denied 94 NY2d 865). During their initial visit to the
vehicle, the police asked to see defendant’s license and registration,
as well as the rental agreement for the vehicle. Upon examination of
those documents away from the vehicle, they concluded that defendant
was the sole occupant of the vehicle, but that he was not listed on
the vehicle rental agreement as an authorized driver of the vehicle.
That conclusion provided the police with at least “a founded suspicion
that criminal activity [was] afoot” (People v Hollman, 79 NY2d 181,
184), i.e., that defendant was committing the unauthorized use of a
motor vehicle in the third degree (see Penal Law § 165.05 [1]; People
v Bryant, 77 AD3d 485, 485, lv denied 16 NY3d 829). The police were
therefore justified in returning to the vehicle a second time to
inquire into the identity of the person named on the rental agreement
                                 -2-                           716
                                                         KA 14-00566

and whether defendant had permission to use the vehicle (see generally
People v Jones, 66 AD3d 1476, 1477, lv denied 13 NY3d 908; People v
Kelly, 37 AD3d 866, 867, lv denied 8 NY3d 986). During their second
visit to defendant’s vehicle, one of the police officers saw a gun on
the floor of the vehicle, which provided the police with probable
cause to arrest defendant (see People v Johnson, 114 AD3d 1132, 1132,
lv denied 24 NY3d 961). We therefore conclude that the police “did
not inordinately prolong the detention beyond what was reasonable
under the circumstances” (People v Edwards, 14 NY3d 741, 742, rearg
denied 14 NY3d 794).

     Contrary to defendant’s further contention, the testimony from
police officers at the suppression hearing was not “ ‘unbelievable as
a matter of law, manifestly untrue, physically impossible, contrary to
experience, or self-contradictory’ ” (People v Bush, 107 AD3d 1581,
1582, lv denied 22 NY3d 954). “ ‘The suppression court’s credibility
determinations and choice between conflicting inferences to be drawn
from the proof are granted deference and will not be disturbed unless
unsupported by the record’ ” (People v Twillie, 28 AD3d 1236, 1237, lv
denied 7 NY3d 795) and, here, there is no basis in the record to
disturb the suppression court’s determination to credit the testimony
of the police officers (see People v Williams, 115 AD3d 1344, 1345;
Bush, 107 AD3d at 1582).




Entered:   July 10, 2015                       Frances E. Cafarell
                                               Clerk of the Court
