Opinion
2002-08500.
Decided April 5, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered September 3, 2002, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Lynn W.L. Fahey, New York, N.Y. and Arnold Porter (Dorothy N. Giobbe of counsel), for appellant (one brief filed).
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Christopher C. Land of counsel), for respondent.
Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, THOMAS A. ADAMS, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
On August 24, 2001, at approximately 9:10 P.M., three plainclothes police officers in Brooklyn were in an unmarked minivan which was stopped at a red light when one of the officers observed the defendant on the sidewalk. That officer testified at a suppression hearing that he observed the defendant holding a handgun in his hand, apparently exhibiting it to another person. The area was well lit and the officer had an unobstructed view of the defendant and the weapon. Two of the officers exited the van and recovered the weapon from the defendant and then arrested him.
Great weight is generally accorded to the factual findings of the suppression court, which saw and heard the witness ( see People v. Prochilo, 41 N.Y.2d 759), and the issue of credibility is generally to be determined by the trier of fact ( see People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932). The officer's testimony was not "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Garafolo, 44 A.D.2d 86, 88; see also People v. Singletary, 253 A.D.2d 532; People v. Murreld, 185 A.D.2d 826). Accordingly, we discern no basis in the record to disturb the suppression court's credibility determination, and the suppression court properly denied that branch of the defendant's motion which was to suppress the handgun.
The sentence imposed was not excessive ( see People v. Suite, 90 A.D.2d 80).
SMITH, J.P., GOLDSTEIN, ADAMS and TOWNES, JJ., concur.