People v. Rodriguez

205 A.D.2d 453, 614 N.Y.S.2d 499, 1994 N.Y. App. Div. LEXIS 6721

Opinion

Judgment, Supreme Court, Bronx County (Edward Davidowitz, J., at Mapp hearing; Vincent Vitale, J., at trial), rendered November 24, 1992, convicting defendant, after a nonjury trial, of criminal possession of a weapon in the fourth degree, and sentencing him to an unconditional discharge, unanimously affirmed.

Viewing the evidence in the light most favorable to the prosecution and giving it the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, cert denied 469 US 932), defendant’s guilt was proven beyond a reasonable doubt by legally sufficient evidence that he possessed a gun. Moreover, upon an independent review of the facts, we find that the verdict was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490). The issues raised by defendant concerning the credibility of the police witness, including those that arose from his testimony that he observed a two-inch long holster clip in defendant’s waistband from a distance of about 23 feet while driving along a four-lane street even though defendant was wearing several layers of loose hanging winter clothing, and that defendant, in plain view of two uniformed officers exiting from a marked police car, withdrew a loaded revolver and placed it in a small box on top of an ice machine immediately outside a store into which he walked, and from defendant’s own testimony denying possession of a gun, were properly placed before the factfinder and, after considering the relative force of the conflicting testimony and the competing inferences that may be drawn therefrom, we find no reason on the record before us to disturb his determination. The arresting officer’s hearing testimony, which was substantially the same as his trial testimony, once accepted as credible, was sufficient to show probable cause for the arrest (see, People v Matienzo, 81 NY2d 778). Concur— Sullivan, J. P., Carro, Wallach, Williams and Tom, JJ.