People v. Gaynor

294 A.D.2d 374, 741 N.Y.S.2d 702, 2002 N.Y. App. Div. LEXIS 4756

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered July 21, 1998, convicting him of criminal possession of a weapon in the third degree, 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.

Contrary to the People’s contention, the record does not indicate that the defendant entered a voluntary, knowing, and intelligent waiver of his right to appeal (see People v Seaberg, 74 NY2d 1, 10). We do not, however, agree with the defendant that the testimony of one of the witnesses at the hearing held in connection with the defendant’s motion to suppress was “patently tailored to nullify constitutional objections” (People v Torres, 257 AD2d 672; cf. People v Lewis, 195 AD2d 523) or otherwise incredible as a matter of law. The evidence adduced at the hearing supports the Supreme Court’s conclusion that the weapon and other evidence seized from the defendant was obtained legally. Accordingly, the motion to suppress was properly denied. Santucci, J.P., Altman, McGinity and Adams, JJ., concur.