Opinion
March 3, 1986
Appeal from the Supreme Court, Queens County (Kellam, J.).
Judgment affirmed.
In resolving the conflicting testimony of the People's and the defendant's witnesses, issues of credibility are for the determination of the hearing court, "and its findings should be upheld unless they are clearly erroneous" (People v. Armstead, 98 A.D.2d 726). Here, the court found credible the testimony of the arresting officer that he observed a passenger in the rear seat of the defendant's parked car kicking a gun under the front seat. The record does not present any reason to disturb that finding, and thus we find the arrest of the vehicle's occupants and seizure of the weapon lawful under the plain view doctrine. "The Fourth Amendment `protects people from unreasonable government intrusions into their legitimate expectations of privacy' * * * One has no legitimate expectation of privacy in locations in a car which are observable by passersby. Accordingly, an officer's simply peering inside an automobile does not constitute a search and the Fourth Amendment consequently does not limit this activity" (People v. Class, 63 N.Y.2d 491, 494-495, revd on other grounds 475 US ___, 106 S Ct 960). In addition, we find that the defendant expressly waived his constitutional right against self-incrimination after the administration of Miranda warnings. The defendant's reliance on our decisions in People v. Moore ( 96 A.D.2d 1044) and People v Campbell ( 81 A.D.2d 300) is misplaced. Here, the arresting officer expressly asked the defendant if he wished to answer questions after reading him his rights and ascertaining that the defendant understood them. Contrary to the defendant's contention, Moore (supra) and Campbell (supra) do not prescribe any mandated language to be used in eliciting a waiver (see, People v Campbell, supra, at p 302). We have considered the defendant's remaining contentions and find them to be without merit. Gibbons, J.P., Thompson, Brown and Weinstein, JJ., concur.