Opinion
August 14, 1989
Appeal from the Supreme Court, Kings County (Tomei, J.).
Ordered that the judgment is affirmed.
The defendant and his girlfriend were passengers in a taxicab which was stopped by police because it was weaving in and out of its lane. One police officer testified at trial that, as he and his partner approached the cab, he observed the defendant holding a black object which the defendant put on the floor, that both passengers were immediately ordered out of the cab, and that his partner removed what proved to be a gun. According to the testimony of the partner, the gun was recovered from the floor of the passenger's side of the vehicle where the defendant's feet had been.
The defendant testified at trial that he had not possessed and never before had seen the gun before it concededly was retrieved from the cab. His girlfriend testified that she remained seated in the cab while it was searched and implied that the gun was retrieved from underneath the driver's seat. However, apart from the statutory presumption concerning possession of a firearm in an automobile (see, Penal Law § 265.15) upon which the trial court, acting as the finder of fact, was entitled to rely (see, People v. Terry, 148 A.D.2d 478), the conflicting testimony presented issues of credibility (People v. Terry, supra). We discern no basis for interfering with the fact finder's resolution of those issues (see, People v Gaimari, 176 N.Y. 84, 94).
Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that the evidence was legally sufficient to establish the defendant's guilt (see, Penal Law § 265.15; cf., People v. Lemmons, 40 N.Y.2d 505, 510; People v. Lynch, 116 A.D.2d 56, 60). Moreover, upon the exercise of our factual review power, we are satisfied that the determination of the defendant's guilt was not against the weight of the evidence (see, CPL 470.15). Kooper, J.P., Spatt, Harwood and Rosenblatt, JJ., concur.