Opinion
November 18, 1992
Appeal from the Supreme Court, Kings County (Broomer, J.).
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 N.Y. 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 A.D.2d 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 A.D.2d 402; People v Williams, 156 A.D.2d 288; People v Ennis, 158 A.D.2d 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 A.D.2d 293; People v Smith, 130 A.D.2d 600; People v Henriquez, 116 A.D.2d 589; cf., People v Miret-Gonzalez, 159 A.D.2d 647). Accordingly, we shall not disturb the hearing court's determination to deny the suppression motion (see, People v Prochilo, 41 N.Y.2d 759; People v Williams, supra; People v Milliner, 146 A.D.2d 717; People v Trulio, 135 A.D.2d 758; People v Henriquez, 128 A.D.2d 803). In any event, the defendant's conduct in discarding the gun constituted an abandonment (see, People v Lawrence, 176 A.D.2d 965; People v Braithwaite, 172 A.D.2d 548; People v Elliot, 162 A.D.2d 609).
We have considered the defendant's remaining contentions and find them to be without merit. Thompson, J.P., Bracken and Balletta, JJ., concur.
I disagree with the ruling of the Supreme Court, made after a hearing denying that branch of the defendant's omnibus motion which was to suppress the gun, and with my colleagues in the majority who have voted to affirm that judgment.
The incident which was the subject of the hearing occurred at approximately 12:30 A.M. on December 12, 1985. Detective Neil O'Donnell, who was a police officer at the time of this incident, testified that he was on radio motor patrol serving as driver, with his partner, Officer Antonio Weaver, who served as recorder, when, from a distance of approximately 60 feet, he observed the defendant and two other men standing on a street corner having a conversation. O'Donnell testified that while the car he was driving was still moving he observed that a heavy object which "appeared" to him to have the outline of a gun was weighing down the defendant's right jacket pocket. O'Donnell could not on cross-examination describe the outline but rather insisted that it was his "belief" based upon his training and previous arrests he made involving gun possession, that there was a "50/50 shot that that was a gun in [the defendant's] pocket". Weaver, whose trial testimony was admitted on behalf of the defendant at the suppression hearing pursuant to a stipulation, testified that he also observed the bulge in the defendant's pocket, but he specifically stated that what he saw was a mere bulge, not the outline of a gun or any part of a gun. When the two approached defendant, Weaver had his gun drawn and O'Donnell told the defendant to "come here", whereupon the defendant's eyes lit up and he turned and ran. During the ensuing chase, the defendant dropped the gun which is the premise for the instant prosecution.
I conclude that when Officer O'Donnell told the defendant to "come here", while Officer Weaver's gun was drawn, the defendant was effectively seized (see, People v Cantor, 36 N.Y.2d 106, 111; see also, People v Jennings, 45 N.Y.2d 998). And apart from the fact that I find O'Donnell's testimony that he observed the outline of a gun in the defendant's coat pocket at night from a moving vehicle at a distance of 60 feet to be tailored to meet constitutional objections (see, e.g., People v Garafolo, 44 A.D.2d 86, 88; see also, People v Cruz, 158 A.D.2d 293), it is my view that, absent any indicia of criminal activity, an officer's "50/50" but otherwise unexplainable belief that a gun is in a person's pocket is an insufficient predicate to forcibly detain that person or to chase him when he exercised his constitutional right to flee (see, People v Leung, 68 N.Y.2d 734; People v Howard, 50 N.Y.2d 583, cert denied 449 U.S. 1023; People v Terracciano, 135 A.D.2d 849).
It is also my view that the defendant's dropping of the gun during the chase was a direct and immediate response to the illegal police conduct rather than an independent act involving a calculated risk (see, People v Boodle, 47 N.Y.2d 398, cert denied 444 U.S. 969; see, People v Archie, 136 A.D.2d 553; People v McFadden, 136 A.D.2d 934). I therefore vote to reverse the judgment, and would grant that branch of the defendant's omnibus motion which was to suppress certain physical evidence, and to dismiss the indictment.