People v. Gallego ( 1990 )

Judgment of the Supreme Court, New York County (Jerome Marks, J., at suppression hearing; John Bradley, J., at jury trial and sentence), rendered May 12, 1987, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of from 3 to 6 years, unanimously affirmed.

At 6:30 p.m. on a July evening, the arresting officer, on narcotics surveillance, was observing street activity in front of a building opposite his fifth-floor window with 10-by-50 high-powered binoculars when he noticed defendant, seated on the hood of the car, partially remove a gun from his rear waistband and then replace the weapon. He notified his backup team, which together with this officer approached defendant, placed defendant’s hands against the car, and recovered a .25 caliber automatic weapon from his rear waistband. Based on these facts, defendant’s motion to suppress the gun was denied.

We reject defendant’s contention that the evidence should have been suppressed. Great weight must be accorded the determination of the hearing court, with the particular advantage of having seen and heard the witnesses (People v Prochilo, 41 NY2d 759). Nor was the testimony presented by the People "inherently incredible or improbable” (People v Samuels, 68 AD2d 663, 666, affd 50 NY2d 1035, cert denied 449 US 984). It was not improbable that the officer could observe the presence of the weapon with the aid of binoculars. Nor was his hearing testimony impeached by his report to the Assistant District Attorney, made shortly after the arrest and his Grand Jury testimony, wherein he stated that he saw a metal object with a wooden handle rather than merely using the word "gun”. The same argument, similarly without merit, made as to the officer’s trial testimony has not been preserved for appellate review (see, People v Riley, 70 NY2d 523). Concur —Milonas, J. P., Rosenberger, Asch, Kassal and Rubin, JJ.