People v. Frias

139 A.D.2d 528, 526 N.Y.S.2d 852, 1988 N.Y. App. Div. LEXIS 3655

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered March 20, 1987, convicting him of criminal possession of a weapon in the third degree (two counts), upon his plea of guilty, 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.

We reject the defendant’s contention that the hearing court erred in denying that branch of his motion which sought suppression of the two weapons which the defendant was charged with possessing. The hearing court credited the testimony of the arresting officers that they observed the defendant reach into his front waistband and toss a .357 caliber Magnum revolver into a jeep parked next to where he was standing, and that a second weapon, a .45 caliber automatic handgun, was subsequently recovered from the defendant’s rear waistband. Contrary to the defendant’s assertion, this testimony was not inherently improbable or incredible as a matter of law so as to lead this court to substitute its judgment for that of the hearing court (see, People v Thompson, 126 AD2d 684, lv denied 69 NY2d 887; People v Miller, 124 AD2d 599, lv denied 69 NY2d 714; People v Africk, 107 AD2d 700). Consequently, we find that the hearing court properly denied the motion to suppress the weapons. Kunzeman, J. P., Eiber, Spatt and Sullivan, JJ., concur.