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
-2- 296 

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