Opinion
March 14, 1988
Appeal from the Supreme Court, Queens County (Naro, J.).
Ordered that the judgment is affirmed.
As the complainant was proceeding up the driveway with his girlfriend to her residence, he noticed an automobile with its lights off proceeding down the street in front of the house. The defendant, who was armed with a gun, exited the vehicle, followed the complainant up to the front entrance of the residence and pointed the gun to the back of the complainant's head. After initially demanding and then ripping a gold chain from the complainant's neck, the defendant began to leave, but then returned, once again placed the gun to complainant's head and demanded and received his bracelet. The defendant once again began to leave but returned a second time, directed the complainant to empty his pockets and took some $60 to $70 from complainant. Once again the defendant began to leave, but returned a third time and demanded and took the complainant's wallet. At this time, the complainant punched the defendant, who then shot him in the chest.
Viewing the evidence adduced at the trial in the light most favorable to the People, we find that the evidence is legally sufficient to establish the defendant's guilt beyond a reasonable doubt (People v. Lewis, 64 N.Y.2d 1111). Moreover, upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (CPL 470.15).
The entry area where the incident took place was brightly lit by two exterior house lights, a living room light, a television set that shone on the area, and by nearby street lamps. Further, the victim facially confronted his assailant over a period of some 3 to 4 minutes. The issue of credibility is primarily one to be determined by the trier or triers of the facts (People v. Watson, 111 A.D.2d 419, lv denied 66 N.Y.2d 618; People v. Herriot, 110 A.D.2d 851), and we agree with the jury's determination based upon the complainant's ability to observe the defendant during the incident and to identify the defendant at the lineup and at trial (see, People v. Watson, supra; People v Herriot, supra).
The comments made by the prosecutor during summation constituted an acceptable response to the comments made by defense counsel during his summation (People v. Martin, 112 A.D.2d 387, lv denied 66 N.Y.2d 920).
Finally, the defendant's long involvement with the criminal justice system and his actions in the instant case in robbing and shooting the complainant fully justified the sentence imposed and we decline to exercise our discretion to modify it (see, People v. Suitte, 90 A.D.2d 80). Mollen, P.J., Bracken, Spatt and Sullivan, JJ., concur.