Opinion
May 15, 1995
Appeal from the Supreme Court, Queens County (Demakos, J.).
Ordered that the judgments are affirmed.
On appeal, the defendant contends that the People failed to prove his guilt beyond a reasonable doubt because the testimony of the eyewitness was incredible as a matter of law. However, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. The eyewitness unequivocally maintained throughout her testimony that she had observed the defendant and his codefendant shoot the victims. While there were some inconsistencies in her testimony, those inconsistencies "related primarily to tangential matters and did not render her testimony incredible as a matter of law" (see, People v Lawrence, 179 A.D.2d 682, 683; also see, People v Braithwaite, 188 A.D.2d 388; People v Castro, 174 A.D.2d 378; People v Maisonet, 172 A.D.2d 274).
Moreover, the evidence that the eyewitness was a former drug addict, that she had a criminal record, and that she did not identify the defendant and his codefendant as the shooters until a day or two after the shooting, was before the jury for its consideration and did not render her testimony incredible as a matter of law (see, People v Walker, 185 A.D.2d 867; People v Jenkins, 174 A.D.2d 379; People v Henry, 151 A.D.2d 501; People v Sutton, 108 A.D.2d 942).
It is well settled that resolutions of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v Gaimari, 176 N.Y. 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless it is clearly unsupported by the record (see, People v Garafolo, 44 A.D.2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
Contrary to the defendant's contention, the trial court properly denied his request for a missing-witness charge since the People demonstrated that the uncalled witness was not under their control (see, People v Matthews, 210 A.D.2d 352; People v Miles, 161 A.D.2d 805; People v Sykes, 151 A.D.2d 523).
The defendant's contention that he was deprived of a fair trial by the manner in which the trial court marshaled the evidence in its charge is unpreserved for appellate review (see, People v Bacchus, 183 A.D.2d 720). In any event, the court's failure to refer to testimony brought out on cross-examination did not deprive the defendant of a fair trial (see, People v Bacchus, supra; People v Holton, 160 A.D.2d 729).
We have considered the defendant's remaining contention and find it to be without merit. Balletta, J.P., Copertino and Altman, JJ., concur.
Goldstein, J., dissents, and votes to reverse the judgments, on the law and as a matter of discretion in the interest of justice, to order a new trial on Indictment No. 5237/92, and to remit Indictment No. 5382/92 to the Supreme Court, Queens County, for further proceedings, for reasons stated in the dissenting memorandum in People v Walker ( 215 A.D.2d 607 [decided herewith]; see also, People v Clark, 45 N.Y.2d 432).