People v. Ortiz ( 1992 )

Judgment, Supreme Court, Bronx County (Lawrence J. Tonetti, J.), rendered February 21, 1990, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and unlawful wearing of a body vest and sentencing him, as a second felony offender, to concurrent terms of 2Vi to 5 years and 1 Vi to 3 years, respectively, unanimously affirmed.

After directing defendant to pull over for a traffic infraction, a police officer viewed a revolver in the defendant’s waist band as defendant reached across the vehicle to the glove compartment in order to obtain the identification papers. After the officer immediately alerted his partner, the defendant spontaneously stated "I have a gun in my waistband.” The trial court denied defendant’s motion to suppress the physical evidence and the statement.

We reject defendant’s contention that the officer’s testimony was not credible as a matter of law, and note that deference is to be accorded to the hearing court’s resolution of issues of credibility (People v Garafolo, 44 AD2d 86, 88). We also find that the defendant’s statement was spontaneous and not the product of expressed questioning or its functional equivalent (see, People v Bryant, 59 NY2d 786, 788). Concur — Milonas, J. R, Ellerin, Kupferman, Ross and Rubin, JJ.