Opinion
June 24, 1991
Appeal from the Supreme Court, Kings County (Slavin, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by deleting the provision that certain of the terms of imprisonment shall run consecutively and substituting therefor a provision that all terms of imprisonment shall run concurrently to one another; as so modified, the judgment is affirmed.
The defendant has standing to challenge the legality of the search of the codefendant's apartment in which he was present, because he was charged under the statutory presumption of possession of Penal Law § 220.25 (2) (see, People v Wesley, 73 N.Y.2d 351, 360; People v Millan, 69 N.Y.2d 514). We find, however, that the hearing court's ruling that the search was proper should not be disturbed. The court found that the police acted appropriately in entering the apartment to disarm the defendant when they observed him in the doorway holding a gun, at which time they observed drugs and drug paraphernalia in plain view (see, People v Anderson, 127 A.D.2d 774, 775; People v Green, 103 A.D.2d 362, 364; People v Cruz, 89 A.D.2d 526). The determination was based upon assessments of credibility that are primarily for the hearing court, which had an opportunity to see and hear the witnesses, and its finding was not clearly erroneous (see, People v Cartier, 149 A.D.2d 524, cert denied 495 U.S. 906; People v Garafolo, 44 A.D.2d 86). Moreover, contrary to the defendant's position, trial testimony is not properly considered in evaluating the suppression ruling on appeal (see, People v Gonzalez, 55 N.Y.2d 720, 721-722, cert denied 456 U.S. 1010; People v Anderson, supra; People v Malone, 121 A.D.2d 657).
In addition, the defendant was apprehended in close proximity to almost eight ounces of crack cocaine and paraphernalia used to package the crack for sale which were in plain view. Accordingly, the evidence was legally sufficient to support the defendant's conviction for criminal possession of a controlled substance in the first degree (see, Penal Law § 220.21; § 220.25 [2]; People v Alexander, 152 A.D.2d 587, 588; People v James, 151 A.D.2d 606, 607). Furthermore, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
We find that the sentence was excessive to the extent indicated herein.
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Thompson, J.P., Kunzeman, Sullivan and Balletta, JJ., concur.