People v Brown (2006 NY Slip Op 50749(U))

People v Brown (Kimani)

2006 NY Slip Op 50749(U) [11 Misc 3d 143(A)]

Decided on April 27, 2006

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Appellant,

against

Kimani Brown Defendant-Respondent.

The People appeal from an order of the Criminal Court, Bronx County (Eugene Oliver, Jr., J.), dated June 28, 2004, which granted a motion by defendant to suppress physical evidence.

Order (Eugene Oliver, Jr., J.), dated June 28, 2004, reversed, on the law and the facts, suppression motion denied and the matter remitted for further proceedings on the information.

The police testimony at the suppression hearing showed that defendant was observed holding something in his right hand while standing inside the lobby of a Bronx apartment building known for drug activity; that upon the arresting officer's (lawful) approach, defendant "immediately turned" away from the officer in an apparent effort to "shield" his right side from the officer's view, while attempting to push an object into his right front pants pocket; and that the officer, believing that the object might be a weapon, moved around defendant and saw part of a bag of crack/cocaine hanging out of the top of defendant's pocket. This factual recitation, fully credited by the Judicial Hearing Officer (JHO) who presided over the suppression hearing, was not " manifestly untrue, physically impossible, contrary to experience, or self-contradictory'" (People v Garafolo, 44 AD2d 86, 88 [1974]), quoting 22 NY Jur, Evidence § 649). Therefore, there was no basis for Criminal Court to reject the police testimony as a "pretext"
upon its independent review of the cold suppression record (see People v Hierro, 5 Misc 3d 48 [2004], lv denied 3 NY3d 757 [2004]). Criminal Court's stated conclusion that the bag of cocaine was not in plain view and instead must have been "concealed" under defendant's jacket is "unsupported by the record and based upon speculation" (People v Butler, __AD3d__, 2006 NY Slip Op 02296 [lst Dept]). There being no sound reason to discredit the police account of a plain view sighting that the JHO found to be reliable and
credible, we reverse the order under review and deny defendant's suppression motion. [*2]

This constitutes the decision and order of the court.
Decision Date: April 27, 2006