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

296
KA 12-02101
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LAWRENCE E. WILLIAMS, II, DEFENDANT-APPELLANT.


LOTEMPIO & BROWN, P.C., BUFFALO (MICHAEL H. KOOSHOIAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered May 22, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree, unlawful possession of marihuana and operating a
motor vehicle with excessively tinted windows.

     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 criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]), unlawful possession of
marihuana (§ 221.05), and operating a motor vehicle with excessively
tinted windows (Vehicle and Traffic Law § 375 [12-a] [b] [2]). The
conviction arises out of a lawful traffic stop of the vehicle driven
by defendant (see People v Fagan, 98 AD3d 1270, 1271, lv denied 20
NY3d 1061, cert denied ___ US ___, 134 S Ct 262), and a subsequent
search of the vehicle after the police detected the odor of marihuana
emanating therefrom (see People v Cuffie, 109 AD3d 1200, 1201, lv
denied 22 NY3d 1087; see generally People v Blasich, 73 NY2d 673,
678). Defendant contends that Supreme Court erred in refusing to
suppress evidence of the marihuana and handgun found by the police, as
well as his statements to the police. Specifically, defendant
contends that the evidence before the court was not sufficient to
sustain a factual determination that the vehicle driven by defendant
was lawfully searched by the police officers inasmuch as the testimony
of the police officers at the suppression hearing was “contradictory,
confusing[,] and ha[d] the appearance[] of being . . . tailored to
nullify constitutional objections.” We reject that contention.
“Questions of credibility are primarily for the suppression court to
determine and its findings will be upheld unless clearly erroneous”
(People v Squier, 197 AD2d 895, 896, lv denied 82 NY2d 904; see
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                                                        KA 12-02101

generally People v Prochilo, 41 NY2d 759, 761). Here, although one of
the arresting officers was unable to recall certain details of the
traffic stop, his testimony was sufficiently corroborated by that of
the other arresting officer (see People v Walker, 155 AD2d 916, 916,
lv denied 75 NY2d 819; see also People v Ponzo, 111 AD3d 1347, 1347).
“Nothing about the officer[s’] testimony was 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). We therefore discern no basis in the record to
disturb the suppression court’s credibility assessment, and we
conclude that its determination is supported by sufficient evidence in
the record (see generally People v Yukl, 25 NY2d 585, 588, cert denied
400 US 851; People v Lopez, 85 AD3d 1641, 1641-1642, lv denied 17 NY3d
860).




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
