Opinion
April 12, 1993
Appeal from the Supreme Court, Kings County (Miller, J.).
Ordered that the judgment is affirmed.
The defendant initially claims that the hearing court erred in failing to suppress the weapon found on his person, inasmuch as the testimony of the arresting officer, who was the sole witness at the suppression hearing, was "incredible as a matter of law", as evidenced by the inconsistencies between the arresting officer's version of the seizure of the weapon and the events leading up thereto and that given by the officer's partner at trial. However, since the defendant never moved at trial to reopen the hearing on this basis, this issue is not properly before this Court (see, CPL 470.05; People v Denny, 177 A.D.2d 589, 590; People v Hucks, 175 A.D.2d 213, 214). Moreover, the propriety of the denial of the defendant's suppression motion should be adjudged upon the evidence before the suppression court (see, People v Gonzalez, 55 N.Y.2d 720, 722, cert denied 456 U.S. 1010; People v Denny, supra; People v Malone, 121 A.D.2d 657). In any event, the defendant's contention is grounded in attacking the credibility of the arresting officer's testimony, a matter which is primarily for the hearing court's assessment (see, People v Garafolo, 44 A.D.2d 86, 88). Its determination should be accorded great weight on appeal (see, People v Prochilo, 41 N.Y.2d 759; People v Tromp, 160 A.D.2d 750). The arresting officer testified at the hearing that he had observed a "butt handle" of what appeared to be a gun protruding from a "bulge" in the waistband of the defendant, whose clothing matched the description contained in a radio report received immediately prior to this observation. Under these circumstances, the officers had an adequate basis for approaching the defendant and seizing the gun from him (see, People v Benjamin, 51 N.Y.2d 267, 271). The inconsistencies unearthed at trial were not fatal to the hearing court's determination (see, People v Denny, supra; People v Malone, supra).
The defendant's contention that he was prejudiced by the prosecutor's improper attempt to elicit the content of the radio report, which constituted inadmissible hearsay (see, People v Briggs, 156 A.D.2d 574), is without merit, given the minimal amount of information elicited and the court's prompt admonitions upon such efforts, which were invariably accompanied by curative instructions (see, People v Berg, 59 N.Y.2d 294, 299-300; People v Solano, 159 A.D.2d 738).
We find that the prosecutor also improperly vouched for the officers' credibility during the course of the trial. However, the trial court's immediate admonitions and curative instructions both at the outset of and during the trial and during its charge to the jury adequately served to eliminate any possible prejudice to the defendant (see, People v Berg, supra; People v Jones, 173 A.D.2d 853).
We have examined the defendant's various contentions regarding the propriety of certain of the prosecutor's summation comments and find that such remarks constituted either fair response to the defense counsel's summation or fair comment on the extent of the evidence adduced at trial (see, People v Galloway, 54 N.Y.2d 396; People v Ashwal, 39 N.Y.2d 105; People v Perez, 132 A.D.2d 579). In any event, any possible prejudice to the defendant in this vein was similarly cured by the court's extensive instructions to the jury (see, People v Williams, 134 A.D.2d 636, 637; People v Ogelsby, 128 A.D.2d 556). Thompson, J.P., Rosenblatt, Pizzuto and Santucci, JJ., concur.