PEOPLE v. SMITH (1998)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Paul SMITH, a/k/a Bryan Howard, Defendant-Appellant.

Decided: July 02, 1998

Before SULLIVAN, J.P., and MILONAS, RUBIN, WILLIAMS and ANDRIAS, JJ.

Pamela Tishman, for respondent. Alexei Schacht, for defendant-appellant.

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered June 7, 1996, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him to a term of 2 1/3 to 7 years, unanimously affirmed.

Defendant's suppression motion was properly denied. The officer's observation of a waistband bulge appearing to be a handgun, corroborated by a prior radio message, provided ample basis for the minimal intrusion of touching defendant's waistband, whereupon the officer felt the butt of the gun. We see no reason to disturb the court's credibility determinations (see, People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).

Defendant's challenge to the certification of the ballistics report presented to the Grand Jury is, in essence, a challenge to the sufficiency of the Grand Jury evidence, and thus is not reviewable on appeal from the judgment of conviction (CPL 210.30[6] ).

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.

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