Opinion
May 21, 1996
Appeal from the Supreme Court, Bronx County (David Stadtmauer, J.).
Evidence adduced at the hearing directed by this Court in a prior appeal from the judgment ( 193 A.D.2d 529) was that police officers on routine patrol, responding to a commotion in a park, saw defendant, whom they described, display a gun and directed him to stop, whereupon defendant threw the gun to the ground and fled, but was immediately apprehended. As the hearing court held, the display of the gun provided probable cause to arrest, regardless of the recovery of the gun itself, and the testimony of one of defendant's witnesses that another person was seen with a gun, which was marked by inconsistencies between the description of the putative other gun and the gun possessed by defendant, hardly excluded the possibility that defendant had a gun. Nor is there any basis to disturb the hearing court's conclusion that another of defendant's witnesses, who claimed that defendant was grabbed indiscriminately by police during a roundup of the park's occupants, was incredible. We modify the sentence so as to impose the minimum term of 2 to 4 years, the sentencing court having explicitly indicated that such was its intention but inexplicably failed to do so. We have considered defendant's remaining contentions and find them to be without merit.
Concur — Murphy, P.J., Milonas, Rosenberger and Ross, JJ.