People v. Basile

— Order, Supreme Court, New York County (Alfred H. Kleiman, J.), entered February 4, 1992, after a continued Mapp hearing, which granted defendant’s motion to suppress physical evidence and dismissed the indictment charging defendant with criminal possession of a controlled substance in the fourth degree, unanimously affirmed.

Although we previously held that the observing officer’s direct testimony at the initial Mapp hearing sufficed to establish a prima facie showing of probable cause (see, People v Basile, 174 AD2d 472, lv denied 78 NY2d 1073), defendant succeeded in refuting that testimony through introduction of evidence on cross-examination at the continued Mapp hearing previously directed by this Court. The officer’s Grand Jury testimony and the incident report he prepared recording his observations at the scene contradicted his direct testimony at the hearing in material respects. Thus, we do not disturb the hearing court’s determination on credibility. Concur — Sullivan, J. P., Carro, Milonas and Kupferman, JJ.