E.D.N.Y.: Only one of three officers saw gun under streetlight; credibility here goes to the officer and why

Three officers were on patrol and only one saw defendant allegedly remove a chrome gun from one pocket and the glint of a streetlight off the gun. Defendant provided an affidavit that he never pulled the gun out, but he didn’t testify. “As a preliminary matter, the court notes the difficulty of this case and cases like it. See Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013) (‘In making these decisions I note that evaluating a stop in hindsight is an imperfect procedure. Because there is no contemporaneous recording of the stop (such as could be achieved through the use of a body-worn camera), I am relegated to finding facts based on the often conflicting testimony of eyewitnesses.’). Allen, although he was accompanied by three other officers, is the only one who claims to have seen Felix with a gun prior to the stop. Felix disputes that Allen could have seen him with a gun at all. No other witnesses are available who could shed light on whether Allen or Felix is telling the truth. Nonetheless, for the reasons stated below, the court finds that Allen’s testimony is credible.” The court makes a detailed credibility finding. United States v. Felix, 2016 U.S. Dist. LEXIS 48933 (E.D.N.Y. April 8, 2016).*