People v. Dugan

128 A.D.2d 633, 513 N.Y.S.2d 29, 1987 N.Y. App. Div. LEXIS 44323

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1987
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hellenbrand, J.), rendered May 8, 1985, 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.

Ordered that the judgment is affirmed.

Contrary to the defendant’s assertion, we find that the testimony of a police officer who testified at the hearing that he saw the butt of a gun in the back waistband of the defendant’s pants was not incredible as a matter of law (see, e.g., People v Miller, 124 AD2d 599; People v Africk, 107 AD2d 700, 702), and that the hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress the gun.

The defendant’s contention that the People failed to prove his guilt beyond a reasonable doubt is also without merit. Issues as to the credibility of witnesses and the weight of the evidence presented are primarily for the jury to determine (see, People v Thompson, 126 AD2d 684; People v Rosenfeld, 93 AD2d 872). Upon the exercise of our factual review power, we are satisfied that the evidence was of sufficient quality and quantity to establish the defendant’s guilt beyond a reasonable doubt (CPL 470.15 [5]).

Finally, we note that defendant’s contentions that he was deprived of a fair trial by the misconduct of the prosecutor are either unpreserved for appellate review or without merit. Thompson, J. P., Niehoff, Lawrence and Kunzeman, JJ., concur.