People v. Brown (Jason)

People v Brown (2023 NY Slip Op 50645(U)) [*1] People v Brown (Jason) 2023 NY Slip Op 50645(U) [79 Misc 3d 127(A)] Decided on June 30, 2023 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 This opinion is uncorrected and will not be published in the printed Official Reports. Decided on June 30, 2023 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Brigantti, J.P., Michael, James, JJ. 570054/19 The People of the State of New York, Respondent, against Jason Brown, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Cori H. Weston, J., at initial suppression motion and hearing; Linda Poust Lopez, J., at further motion, suppression hearing, plea and sentence), rendered October 24, 2018, convicting him, upon his plea of guilty, of disorderly conduct, and imposing sentence. Per Curiam. Judgment of conviction (Cori H. Weston, J., at initial suppression motion and hearing; Linda Poust Lopez, J., at further motion, suppression hearing, plea and sentence), rendered October 24, 2018, affirmed. The courts at the suppression hearings properly denied defendant's suppression motion. There is no basis for disturbing the courts' credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). The unrebutted police testimony, which was credited by both courts, established that police observed defendant's vehicle traveling at approximately 25 miles per hour when the passenger door suddenly "sw[u]ng" open "while the vehicle was still in motion;" that "the vehicle continue[d] traveling" until eventually the door was closed; and that the officers stopped the vehicle to ensure that the female seated in the passenger seat was safe and did not need aid. In these circumstances, the stop of the vehicle was justified based on considerations of public safety, even where an "actual violation of the Vehicle and Traffic Law [is] not ... detectable" (People v Ingle, 36 NY2d 413, 420 [1975]), and this safety concern outweighs the interference of defendant's liberty (see People v Holstein, 154 AD2d 905 [1989], lv denied 74 NY2d 905 [1989]; People v Graham, 70 Misc 3d 126[A], 2020 NY Slip Op 51484[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020); United States v Touzel, 409 F Supp 2d 511 [D Vt 2006], affd 281 Fed Appx 37 [2d Cir 2008]). The determinations of the hearing courts, which actually saw and heard the witness testify, are entitled to deference, and it is not our practice to substitute our own fact-findings for those under review unless the latter are plainly unjustified or clearly erroneous (see People v Martin, 112 AD3d 453, 454 [2013]). Defendant's contention that the arresting officer's testimony at the reopened suppression hearing was unworthy of belief is unpreserved for appellate review, since he did not raise this argument at the suppression hearing (see CPL 470.05 [2]; People v Britton, 113 AD3d 1101, [*2]1102 [2014], lv denied 22 NY3d 1154 [2014]). We decline to review this claim in the interest of justice. As an alternative holding, we reject it on the merits. Since we do not find the officer's testimony to be manifestly untrue, contrary to common experience, self-contradictory, or tailored, we decline to disturb the court's conclusion affirming the finding of the initial hearing court that the testimony was credible (see People v Garland, 155 AD3d 527, 529 [2017], affd 32 NY3d 1094 [2018], cert denied — US —, 140 S Ct 2525 [2020]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concurI concur I concur Decision Date: June 30, 2023