People v. McCormick

Jun 28, 1990
Versions:162 A.D.2d 878
558 N.Y.S.2d 226
1990 N.Y. App. Div. LEXIS 7916
Mercure, J.

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered May 26, 1989, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

The sole question presented on this appeal is whether County Court properly denied defendant’s motion to suppress certain contraband taken from his automobile during a warrantless search. The hearing testimony demonstrated that State Trooper Peggy Casey lawfully stopped defendant’s speeding vehicle and, while waiting for defendant to produce his registration, noticed "a number of seeds and stems on the floor of the vehicle which [she] believed to be marijuana” and *879"an odor of burnt marijuana in the vehicle”. An ensuing search of the vehicle disclosed quantities of marihuana and cocaine. Following County Court’s denial of the motion, defendant entered a plea of guilty to the crime of criminal possession of a controlled substance in the fourth degree and was sentenced as a second felony offender to a prison term of 3 to 6 years.

Defendant’s challenge to County Court’s denial of his motion to suppress the contraband is without merit. County Court credited Casey’s testimony that she observed marihuana in plain view and noticed the distinctive odor of marihuana, thus justifying the search of the vehicle (see, People v Terrero, 139 AD2d 830, 831; People v Chestnut, 43 AD2d 260, 261-262, affd 36 NY2d 971). Issues of credibility are primarily for the hearing court, and its findings should be upheld unless they are clearly erroneous (see, People v Prochilo, 41 NY2d 759, 761; People v Goodrich, 126 AD2d 835, Iv denied 69 NY2d 880), given "its peculiar advantages of having seen and heard the witnesses” (People v Prochilo, supra, at 761). Casey’s testimony was not inherently improbable or incredible as a matter of law so as to lead this court to substitute its judgment for that of County Court (see, People v Thompson, 126 AD2d 684, 685, Iv denied 69 NY2d 887; People v Goodrich, supra). Thus, County Court properly denied suppression of the contraband.

Judgment affirmed. Mahoney, P. J., Casey, Weiss, Mercure and Harvey, JJ., concur.