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

772
KA 14-02182
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOACHIM S. SYLVESTER AND SHATEEK L. PAYNE,
DEFENDANTS-RESPONDENTS.


MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR APPELLANT.

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-RESPONDENT SHATEEK L. PAYNE.


     Appeal from an order of the Niagara County Court (Matthew J.
Murphy, III, J.), dated April 2, 2014. The order granted the motions
of defendants seeking to suppress physical evidence and certain oral
statements made to the police following a traffic stop.

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

     Memorandum: The People appeal from an order granting defendants’
motions seeking to suppress physical evidence and certain oral
statements made to the police following a traffic stop. The People
failed to preserve for our review their contention that defendant
Sylvester lacked standing to contest the legality of the search of the
vehicle (see People v Hunter, 17 NY3d 725, 726-727). “ ‘[A] defendant
seeking to suppress evidence, on the basis that it was obtained by
means of an illegal search, must allege standing to challenge the
search and, if the allegation is disputed, must establish standing’ ”
(People v Johnson, 94 AD3d 1529, 1531, lv denied 19 NY3d 974, quoting
People v Carter, 86 NY2d 721, 722-723). The People’s challenge to
defendant Sylvester’s standing, made after the proof at the
suppression hearing was closed, was untimely (see Hunter, 17 NY3d at
727-728; see generally People v Turner, 73 AD3d 1282, 1283, lv denied
15 NY3d 896).

     The People further contend that County Court erred in granting
those parts of defendants’ motions seeking to suppress physical
evidence because the evidence at the suppression hearing established
the requisite reasonable suspicion authorizing the request for consent
to search the vehicle (see People v Boler, 106 AD3d 1119, 1122). We
reject that contention inasmuch as it is premised upon the testimony
of a police witness that the court did not find truthful. “It is well
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                                                        KA 14-02182

settled that 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 Esquerdo, 71 AD3d 1424, 1424, lv denied 14 NY3d 887
[internal quotation marks omitted]). Here, the ruling that the
request for consent to search the vehicle was unlawful was based
primarily upon the court’s assessment of the credibility of the
People’s principal witness. The court refused to credit the testimony
of the officer who initiated the traffic stop, concluding that he
“tailored his testimony to justify the subsequent search.” In our
view, that credibility determination is supported by the record, and
we see no basis to disturb it (see People v Howington, 96 AD3d 1440,
1441).




Entered:   June 19, 2015                       Frances E. Cafarell
                                               Clerk of the Court
