Opinion
October 17, 1994
Appeal from the Supreme Court, Kings County (Juviler, J.).
Ordered that the judgment is affirmed.
The hearing court's determination on issues of credibility should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88). We find no reason to disturb the court's finding that Detective Robert Parker was a credible witness.
The hearing court properly found that the defendant's assault of Detective Parker was a calculated, independent act which had not been provoked by the detective's unlawful conduct in stepping over the threshold of the defendant's apartment. Consequently, the defendant's actions dissipated the taint of any prior illegal conduct (see, People ex rel. Gonzalez v. Warden, 79 N.Y.2d 892; People v. Townes, 41 N.Y.2d 97; People v. Wider, 172 A.D.2d 573).
There is ample support in the record for the court's findings that the struggle and the defendant's arrest culminated over the threshold of the apartment and that the police then lawfully conducted a "protective sweep" search and discovered weapons and drugs in plain view (see, Maryland v. Buie, 494 U.S. 325). The determination of the Supreme Court, which had the advantage of seeing and hearing the witnesses, should therefore not be set aside (see, People v. London, 160 A.D.2d 734).
The search warrant subsequently obtained was valid. Deleting the detective's false statement (see, People v. Tambe, 71 N.Y.2d 492), the affidavit submitted in support of the warrant application contained sufficient facts to establish probable cause.
We have examined the defendant's remaining contentions and find them to be without merit. Sullivan, J.P., Rosenblatt, Pizzuto and Altman, JJ., concur.