Opinion
March 13, 1989
Appeal from the Supreme Court, Kings County (Heller, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, the hearing court correctly determined that his arrest was lawful and that the loaded revolver recovered from him, as well as his inculpatory statement, would have been admissible had he decided to stand trial. Two uniformed officers observed the defendant following another pedestrian on a deserted Brooklyn street near midnight. When he realized that he was being observed, he entered the lobby of an apartment building only to exit moments later. Upon his reemergence, the officers exercised their common-law right of inquiry (see, People v. De Bour, 40 N.Y.2d 210; People v Medina, 107 A.D.2d 302). During their brief exchange, which was not accompanied by a show of force, Officer Jones observed a homemade wire holster draped over the defendant's belt, extending into his pants. Simultaneous therewith, Officer Drouin noticed a bulge inside the defendant's pants. These observations constituted reasonable suspicion that the defendant might be armed, thereby justifying the ensuing frisk (see, People v Samuels, 50 N.Y.2d 1035, cert denied 449 U.S. 984). Upon discovery of a loaded .32 caliber revolver on the defendant's person, probable cause clearly existed to effect his arrest. Since the defendant's arrest was not improper, there was no need to suppress this evidence or his subsequent spontaneous inculpatory statement (see, People v. Francis, 139 A.D.2d 527, lv denied 72 N.Y.2d 859).
Nor do we find the testimony of the arresting officers incredible as a matter of law. Testimonial inconsistencies existed in both the People's case and that of the defense. Having had the advantage of hearing and seeing the witnesses first hand, the hearing court's determination is to be accorded much weight on appeal (see, People v. Prochilo, 41 N.Y.2d 759), and it should be upheld unless it is clearly erroneous (see, People v Singletary, 135 A.D.2d 757). Inasmuch as the hearing court's determination herein is supported by the record, it should not be disturbed on appeal (see, People v. Norris, 122 A.D.2d 82, lv denied 68 N.Y.2d 916). Thompson, J.P., Lawrence, Kunzeman and Rubin, JJ., concur.