Opinion
March 6, 1989
Appeal from the Supreme Court, Queens County (Appleman, J.).
Ordered that the judgment is affirmed.
The defendant contends that the trial court erred in denying his oral motion to suppress physical evidence, made at the end of the People's case. However, after discussion of possible issues of the defendant's standing to challenge the seizure of the evidence and abandonment, the court suggested that they "get back to the issue at the end of the trial". The defendant's trial counsel expressly agreed to the suggested procedure. Furthermore, counsel never again raised the suppression issue, and there was no ruling by the court. Under these circumstances, we find that the defendant abandoned any claim that the evidence was obtained illegally and thereby waived the issue raised on this appeal (see, CPL 710.70; People v. Esajerre, 35 N.Y.2d 463, 466; People v. Wachtel, 124 A.D.2d 613, 615, lv denied 69 N.Y.2d 835; People v. Corti, 88 A.D.2d 345, 347).
The trial court, acting as the finder of fact, properly relied on the statutory presumption concerning possession of a firearm in an automobile (Penal Law § 265.15; see, People v Heizman, 127 A.D.2d 609, lv denied 69 N.Y.2d 950). The defendant's testimony that he was unaware of the presence of the gun which, according to the police officers, was found on the front seat of the car in which the defendant was traveling, presented an issue of credibility (see, People v. Sanchez, 110 A.D.2d 665; People v Velez, 100 A.D.2d 603, 604). Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15).
We have considered the defendant's remaining claims, including his claim that his sentence should be reduced, and find them to be without merit. Mollen, P.J., Thompson, Kunzeman and Spatt, JJ., concur.