Opinion
December 20, 1993
Appeal from the Supreme Court, Kings County (Miller, J.).
Ordered that the order is affirmed insofar as appealed from.
The hearing court rejected the testimony of the police witnesses called by the People at the suppression hearing, finding that their account of the events was contrived to withstand constitutional objection. Since the testimony of the witnesses was found to be unworthy of belief, the People failed to meet the burden of establishing the legality of the police action in the first instance (see, People v Berrios, 28 N.Y.2d 361, 369).
It is well settled that much weight must be accorded to the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses (People v Prochilo, 41 N.Y.2d 759). On the record before us, we decline to disturb the suppression court's assessment of witness credibility or its finding that the intrusive action taken by the police here was not justified by a reasonable suspicion that the defendant was armed with a gun (cf., People v Salaman, 71 N.Y.2d 869; People v Benjamin, 51 N.Y.2d 267). Accordingly, the order granting suppression of the physical evidence seized at the time of the defendant's arrest is affirmed. Rosenblatt, J.P., Ritter, Copertino and Pizzuto, JJ., concur.