People v. Grajales

187 A.D.2d 631, 590 N.Y.S.2d 890, 1992 N.Y. App. Div. LEXIS 12972

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1992
• Status: Published

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered February 8, 1989, as amended October 2, 1989, 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, without a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence. By decision and order dated July 29, 1991, this Court remitted the matter to the Supreme Court, Kings County, to hear and report on that branch of the defendant’s motion which was to suppress physical evidence, and the appeal was held in abeyance in the interim (People v Grajales, 175 AD2d 293). The Supreme Court has now complied.

Ordered that the judgment, as amended, is affirmed.

The defendant contends that, at a hearing held pursuant to the decision and order of this Court dated July 29, 1991, Officer Neil P. O’Donnell, the officer who had recovered the gun, tailored his testimony in order to establish a sufficient factual predicate for the defendant’s arrest, and that the hearing court erred in crediting his testimony.' However, it is well established that the resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the finder of the facts, who saw and heard the witnesses (see, People v Gaimari, 176 NY 84, 94). Moreover, it is equally well established that the hearing court’s determination will generally be accorded great weight on appeal and will generally not be disturbed unless clearly unsupported by the record (see, People v Garafolo, 44 AD2d 86, 88). The testimony of the officer contained some inconsistencies, and it should be noted that the suppression hearing was held almost six years after the defendant’s arrest. However, we cannot say based upon the record before us that his testimony was incredible as a matter of law (see, People v Villa, 156 AD2d 402; People v Williams, 156 AD2d 288; People v Ennis, 158 AD2d 467). Nor can it be said that Officer O’Donnell’s testimony had the appearances of having been "[patently] tailored to [nullify] constitutional objections” (People v Cruz, 158 AD2d 293; People v Smith, 130 AD2d 600; People v Henriquez, 116 AD2d 589; cf., People v Miret-Gonzalez, 159 AD2d 647). Accordingly, we shall not disturb the hearing court’s determination to deny the suppression motion (see, People v Prochilo, 41 NY2d 759; People v Williams, supra; People v Milliner, 146 AD2d 717; People v Trulio, 135 AD2d 758; People v Henriquez, 128 AD2d 803). In any event, the defendant’s conduct in discarding the gun constituted an abandonment (see, People v Lawrence, 176 AD2d 965; People v Braithwaite, 172 AD2d 548; People v Elliot, 162 AD2d 609).

We have considered the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Bracken and Balletta, JJ., concur.