Opinion
June 6, 1988
Appeal from the Supreme Court, Kings County (Ramirez, J.).
Ordered that the judgment is affirmed.
The defendant argues that the heroin, hypodermic instrument and drug paraphernalia recovered from the car in which he was a passenger should have been suppressed because the arresting officers did not have a reasonable basis for the initial investigatory stop. However the hearing court specifically found that, as they drove by a parked car, two of the arresting officers observed the defendant and a codefendant smoking what appeared to be a marihuana cigarette and that in light of the officers' previous experience in making arrests for possession of marihuana there was reasonable suspicion for the initial stop which then ripened, during the ensuing course of events, into probable cause to arrest the defendant (see, People v De Bour, 40 N.Y.2d 210, 223). Since the hearing court was in the best position to assess the credibility of the witnesses, its determination should be accorded great weight on appeal (see, People v Prochilo, 41 N.Y.2d 759; People v Gee, 104 A.D.2d 561). There is no basis in the record for disturbing the determination.
The defendant also contends that the trial court failed to instruct the jury that the "automobile presumption" set forth in Penal Law § 220.25 (1) was a permissive presumption. Having failed to properly object to the charge as given, the defendant has not preserved this claim for appellate review (see, CPL 470.05). In any event, the claim is without merit. The charge, read as a whole, conveyed the requisite permissive nature of the presumption (see, People v Leyva, 38 N.Y.2d 160, rearg denied sub nom. People v Low, 39 N.Y.2d 832; People v Williams, 93 A.D.2d 948). We also note that the defendant's contention that the trial court improperly charged that the presumption applied to the hypodermic instrument and drug paraphernalia found in the car is similarly unpreserved for our review. In any event, any error in this regard does not require reversal in the interest of justice in light of the overwhelming evidence of guilt.
We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Lawrence, J.P., Weinstein, Spatt and Balletta, JJ., concur.