People v. Williams

• Decision Date: 29 April 1996
• Parties: The PEOPLE, etc., Respondent, v. Gregory WILLIAMS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 856

641 N.Y.S.2d 856

226 A.D.2d 750

The PEOPLE, etc., Respondent, v. Gregory WILLIAMS, Appellant.

Supreme Court, Appellate Division Second Department.

April 29, 1996.

Mark Diamond, Brooklyn, for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Ann Bordley, Melissa M. Beck, of counsel), for respondent.

Before THOMPSON, J.P., and JOY, KRAUSMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rappaport, J.), rendered February 27, 1992, convicting him of murder in the second degree (two counts) and robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements made by the defendant to law enforcement officials.

ORDERED that the judgment is affirmed.

A police officer may ask a person to stop so that the officer may approach in order to request information (see, People v. Reyes, 83 N.Y.2d 945, 946, 615 N.Y.S.2d 316, 638 N.E.2d 961; People v. Mitchell, 223 A.D.2d 729, 637 N.Y.S.2d 450; People v. Bent, 206 A.D.2d 926, 615 N.Y.S.2d 185). Therefore, when Officer Paul, investigating a robbery in the area, saw the defendant and the group he was standing with disperse at the approach of the unmarked police car, the officer acted within the bounds of the law by asking the defendant to stop. Thereafter, when the officer saw the outline of a gun in the defendant's waistband, he was justified in believing that the defendant was armed and was lawfully permitted to frisk him for weapons (see, CPL 140.50[3]; People v. Salaman, 71 N.Y.2d 869, 527 N.Y.S.2d 750, 522 N.E.2d 1048; People v. Chestnut, 51 N.Y.2d 14, 23, 431 N.Y.S.2d 485, 409 N.E.2d 958, cert. denied 449 U.S. 1018, 101 S.Ct. 582, 66 L.Ed.2d 479; People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v Price, 194 A.D.2d 634, 599 N.Y.S.2d 45; People v. Daniels, 190 A.D.2d 858, 859, 593 N.Y.S.2d 878; People v. Quan, 182 A.D.2d 506, 507, 582 N.Y.S.2d 190; People v. King, 165 A.D.2d 835, 560 N.Y.S.2d 217). The recovery of the weapon after the frisk gave the officer probable cause to arrest the defendant and the court properly denied suppression (see, People v. Sattan, 200 A.D.2d 640, 606 N.Y.S.2d 740; cf., People v. Sledge, 225 A.D.2d 711, 640 N.Y.S.2d 117). The hearing court's determination will generally be accorded great weight on appeal and will not be disturbed unless clearly unsupported by the evidence (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500). Contrary to the defendant's contention, the officer's testimony was credible. Nor did the defendant present any evidence to contradict this testimony at the hearing. Accordingly, we find no reason to disturb the hearing court's determination (see, People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Grajales, 187 A.D.2d 631, 632, 590 N.Y.S.2d 890; People v. Williams, 156 A.D.2d 288, 548 N.Y.S.2d 673).

The defendant's contention that the hearing court should have suppressed his statements made to Detective Nickolich on the ground that they had been "coerced by psychological pressures" and induced by "threat" is not preserved for appellate review (see, CPL 470.05[2]; People v. Liccione, 50 N.Y.2d 850, 430 N.Y.S.2d 36, 407 N.E.2d 1333; People v. Bunbury, 218 A.D.2d 747, 630 N.Y.S.2d 784) and in any event, is without merit. The defendant's appearance and demeanor on the videotape belies his claim that he was psychologically or physically coerced by lack of food or water into making the statements (see, People v. Dozier, 221 A.D.2d 655, 634 N.Y.S.2d 210; People v. Turner, 200 A.D.2d 603, 604, 606 N.Y.S.2d 276).

Furthermore, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of the crimes charged beyond a reasonable doubt. Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, supra, at 88, 353 N.Y.S.2d 500). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the...