Opinion
March 10, 1994
Appeal from the Supreme Court, New York County, Herbert J. Adlerberg, J., Carol Berkman, J.
Contrary to defendant's arguments, the arresting officer's testimony at the suppression hearing was not self-contradictory or impeached by the officer's failure to record in the complaint report, on-line booking sheet, and memo book notes, his observation, as testified to at the hearing, of a bulge in defendant's waistband. As found by the hearing court, the officer's testimony was consistent throughout the hearing and fully supported by an in-court demonstration. The officer's failure to mention his observation of the bulge in the three documents in question was easily explained at the hearing on the ground that, in these circumstances, those documents did not call for that particular information. An omission of a fact at a prior time is insufficient for impeachment purposes unless it is shown that the witness' attention was called specifically to the matter in question at the earlier time (People v. Bornholdt, 33 N.Y.2d 75, 88, cert denied sub nom. Victory v. New York, 416 U.S. 905). Additionally, the officer cannot be expected to explain why an interviewing detective did not record in his interview notes the officer's reported observation of the bulge.
The hearing court's determinations of fact and credibility are supported by the record and will not be disturbed by this Court (People v. Jones, 168 A.D.2d 370, lv denied 77 N.Y.2d 907).
Concur — Murphy, P.J., Kupferman, Asch, Williams and Tom, JJ.