People v. Higgins

We reject the defendant’s contention that the hearing court erred in denying that branch of his motion which sought suppression of a .22 caliber gun the defendant was charged with possessing because the arresting officer’s testimony allegedly was incredible as a matter of law. The hearing court credited the testimony of the arresting officer that at one point he observed the handle of the gun protruding "half way out” of the defendant’s jacket pocket and that at another point he observed the gun protruding "all the way out” of the defendant’s jacket pocket. Contrary to the defendant’s assertion, this testimony was not incredible as a matter of law in that it was not "obviously untrue, physically impossible, contrary to experience or self-contradictory” (58 NY Jur 2d, Evidence and Witnesses, § 976, at 732; see also, People v Garafolo, 44 AD2d 86 ). Thompson, J. P., Sullivan, Eiber and Copertino, JJ., concur.