People v. Rivera — 68 N.Y.2d 786

Majority

p. 786

The People of the State of New York, Respondent, v Leslie Rivera, Appellant.

Decided September 9, 1986

p. 787

APPEARANCES OF COUNSEL

Jane K. Falcon and Philip L. Weinstein for appellant.

Mario Merola, District Attorney (Cindy Rainbow of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The sole issue raised by defendant on this appeal from the denial of his suppression motion is that the testimony of the arresting officer should have been rejected, as a matter of law, as incredible; only if the officer’s testimony is credited was there probable cause for the search. Each of the three alleged inconsistencies between the officer’s testimony and prior accounts was brought out during the officer’s examination and

p. 788

separately considered by the trier of fact, who concluded from his observation of the witness and review of the evidence that the officer’s testimony at the suppression hearing was credible. This is not a case where testimony is so flawed that findings as to a witness’s credibility made from the unique perspective of the trier of fact must be overridden (see, People v Reed, 64 NY2d 1144 , 1147; People v Concepcion, 38 NY2d 211 , 213).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.

Cases cited

People v. Foster 64 NY2d 1144 N.Y. 1985-05-02 at 1147 p. 788
People v. Concepcion 38 NY2d 211 N.Y. 1975-12-22 at 213 p. 788