People v Foster
2004 NY Slip Op 00677 [4 AD3d 434]
February 9, 2004
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 21, 2004

The People of the State of New York, Respondent,
Colin Foster, Appellant.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered July 16, 2002, convicting him of criminal possession of a controlled substance in the fifth degree, upon a plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

Contrary to the defendant's contention on appeal, the Supreme Court properly denied that branch of his omnibus motion which was to suppress marijuana observed in plain view and other evidence seized from his vehicle after he was lawfully stopped for a traffic violation (see e.g. People v Beriguette, 84 NY2d 978 [1994]; People v Robinson, 74 NY2d 773 [1989], cert denied 493 US 966 [1989]; People v Schell, 261 AD2d 422 [1999]; People v Dougherty, 251 AD2d 344 [1998]). The testimony of the police officer regarding his observation of the marijuana was not incredible as a matter of law (see People v Garafolo, 44 AD2d 86 [1974]). Ritter, J.P., S. Miller, Adams and Cozier, JJ., concur.