PEOPLE v. GUARINO (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flaherty, J.), rendered September 10, 1998, convicting him of burglary in the second degree, criminal possession of stolen property in the fourth degree, grand larceny in the fourth degree, and petit larceny, upon his plea of guilty, and imposing sentence.   The appeal brings up for review the denial, after a hearing (McDonald, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 It is well settled that resolutions of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the hearing court which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112;  People v. Fraisier, 260 A.D.2d 398, 686 N.Y.S.2d 319;People v. Wilson, 250 A.D.2d 788, 673 N.Y.S.2d 440).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).  On this record, there is no basis for disturbing the hearing court's decision to credit the testimony of the arresting police officer.

 The police officer's conduct, in stopping and ultimately searching the defendant, was justified at its inception and reasonably limited in scope at each successive step in response to the circumstances presented (see, People v. Hollman, 79 N.Y.2d 181, 184-185, 581 N.Y.S.2d 619, 590 N.E.2d 204;  People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562;  People v. Cantor, 36 N.Y.2d 106, 112-113, 365 N.Y.S.2d 509, 324 N.E.2d 872;  see also, People v. Barnes, 221 A.D.2d 552, 633 N.Y.S.2d 590;  People v. Campbell, 194 A.D.2d 618, 619, 599 N.Y.S.2d 57;  People v. Smith, 190 A.D.2d 832, 833, 593 N.Y.S.2d 827;  People v. Miller, 149 A.D.2d 538, 540, 539 N.Y.S.2d 809;  People v. Tucker, 140 A.D.2d 887, 889-890, 528 N.Y.S.2d 705).

 The credible evidence demonstrates that the police officer observed a bulge in the defendant's pocket and fearing for his safety he was justified in asking the defendant what was in his pocket.   The defendant then voluntarily removed a change purse from his pocket, gave it to the police officer, and consented to it being opened by the officer (see, CPL 140.50[3];  People v. Saunders, 180 A.D.2d 542, 580 N.Y.S.2d 255;  see also, People v. Rivera, 60 N.Y.2d 910, 912, 470 N.Y.S.2d 577, 458 N.E.2d 1254;  People v. Beriguette, 199 A.D.2d 515, 605 N.Y.S.2d 759, affd. 84 N.Y.2d 978, 622 N.Y.S.2d 497, 646 N.E.2d 799;  People v. Gonzalez, 115 A.D.2d 73, 79-80, 499 N.Y.S.2d 400, affd. 68 N.Y.2d 950, 510 N.Y.S.2d 86, 502 N.E.2d 1001).   When the officer opened the change purse he saw cards bearing a woman's name.   The defendant denied any knowledge of the credit/debit cards in the change purse.   Accordingly, the police officer had probable cause to arrest him (see, People v. Hollman, supra, at 185, 581 N.Y.S.2d 619, 590 N.E.2d 204;  People v. De Bour, supra, at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562), and suppression of the physical evidence was properly denied.

MEMORANDUM BY THE COURT.