PEOPLE v. MARTINEZ (2020)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Charles S. Lopresto, J.), rendered March 24, 2017, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Steven W. Paynter, J.), after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statement to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant contends that the hearing court should have granted those branches of his omnibus motion which were to suppress physical evidence and his statement to law enforcement officials. Contrary to the defendant's contention, however, the testimony of a police officer at the suppression hearing that he was able to discern that the defendant had a gun on his person as the defendant lifted his shirt to adjust his waistband while crossing a lit street was not incredible as a matter of law or patently tailored to meet constitutional objections (see People v. Jarvis, 117 A.D.3d 969, 970, 985 N.Y.S.2d 889; People v. Dunbar, 104 A.D.3d 198, 216, 958 N.Y.S.2d 764). Further, the testimony presented a credibility question for the hearing court, which determination is entitled to great deference on appeal (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Dunbar, 104 A.D.3d at 216, 958 N.Y.S.2d 764), and we discern no basis on this record to disturb that determination in the exercise of our factual review power.

The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence (see CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902). Contrary to the defendant's contention, his conduct was not consistent with innocent possession of the gun (see People v. Sooknanan, 92 A.D.3d 810, 938 N.Y.S.2d 467; People v. Ortiz, 172 A.D.2d 696, 568 N.Y.S.2d 829).

Contrary to the defendant's further contention, he was not deprived of a fair trial by the admission of the arresting officer's testimony about his military training, which included exercises to spot objects at night through trees. This evidence was relevant to the officer's ability to observe and perceive the subject gun, and was not unduly prejudicial (see People v. Robles, 110 A.D.2d 916, 488 N.Y.S.2d 261, affd 65 N.Y.2d 1045, 494 N.Y.S.2d 697, 484 N.E.2d 1049).

The defendant's remaining contention is without merit.

RIVERA, J.P., BALKIN, ROMAN and BARROS, JJ., concur.