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

246
KA 11-00967
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DANA M. HOLLEY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John L.
DeMarco, J.), rendered February 9, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree (two counts) and criminal possession of a weapon
in the third 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 two counts of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [1] [b]; [3]), and one count of
criminal possession of a weapon in the third degree (§ 265.02 [1]),
defendant contends that County Court erred in refusing to suppress his
statements and certain evidence seized from his person when he was
stopped and searched by a Rochester police officer. Specifically,
defendant contends that the officer’s testimony at the suppression
hearing was incredible, and, thus, the court’s determination that the
officer had reasonable suspicion to believe that he had committed a
crime is not supported by the evidence. We reject defendant’s
contention.

     The officer testified at the suppression hearing that she heard
shots fired, then observed defendant fire a handgun at a moving
vehicle. She stopped defendant and recovered a semi-automatic handgun
from his pocket. It is well settled that a hearing “court’s
credibility determination is entitled to great deference” (People v
Coleman, 57 AD3d 1519, 1520, lv denied 12 NY3d 782; see generally
People v Prochilo, 41 NY2d 759, 761), and we conclude that “[t]he
police officer’s testimony at the suppression hearing does not have
all appearances of having been patently tailored to nullify
constitutional objections . . . , and was not so inherently incredible
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                                                         KA 11-00967

or improbable as to warrant disturbing the . . . court’s determination
of credibility” (People v Walters, 52 AD3d 1273, 1274, lv denied 11
NY3d 795 [internal quotation marks omitted]). We therefore see no
basis in the record for disturbing the court’s finding that the
officer had reasonable suspicion to stop and search defendant, or its
ultimate suppression ruling.




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