Opinion
February 21, 1989
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the judgment is affirmed.
The defendant and codefendant, Sammy Napolitano, were jointly tried on charges stemming from the death of Michael Anaya and the wounding of his stepbrother, Richard Ganser, at the Motion Lounge in Brooklyn on November 27, 1984. At trial, Ganser testified that an argument broke out between himself, Anaya and the defendants in the bathroom of the lounge. The argument continued as the parties entered the bar area, at which time Ganser observed the codefendant shoot Anaya. Anaya fell to the floor and the codefendant shot him a second time. When Ganser attempted to aid his mortally wounded brother, the codefendant passed the gun to the defendant, who shot Ganser in the arm and Anaya in the neck. As they were exiting the bar, the defendant turned to the bartender, who had witnessed the shooting, and stated "[y]ou give us away, and I'll kill you". To this, the codefendant added: "You didn't see nothing, right?".
Although the defendant contends, on appeal, that the evidence was insufficient to support the verdict, we find that the evidence, when viewed in a light most favorable to the prosecution, was legally sufficient to support the convictions. Moreover, 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). The defendant points to certain inconsistencies in the testimony of Richard Ganser and claims that his testimony should be deemed incredible as a matter of law. However, resolution 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 and we see no reason to disturb its findings (see, People v Davis, 113 A.D.2d 951, lv denied 67 N.Y.2d 650; People v Andrews, 112 A.D.2d 1002; People v Di Girolamo, 108 A.D.2d 755, lv denied 64 N.Y.2d 1133).
The defendant additionally claims that his constitutional right of confrontation was violated by the introduction into evidence of the admission of the nontestifying codefendant. The record reveals that the codefendant had telephoned a friend, shortly after the incident, and admitted that he had "had a fight in the club" and that "[s]omebody got hurt". The defendant suggests that the error in introducing this testimony was compounded by the trial court's failure to provide limiting instructions to the jury and by the prosecutor's reference to this testimony during summation.
Initially we note that the defendant has failed to preserve these claims for appellate review (see, CPL 470.05; People v Walker, 71 N.Y.2d 1018; People v Russell, 71 N.Y.2d 1016). In any event, while we recognize that the admission of the pretrial statement of the nontestifying codefendant was improper (see, Cruz v New York, 481 U.S. 186, on remand 70 N.Y.2d 733; Bruton v United States, 391 U.S. 123; People v Wheeler, 62 N.Y.2d 867), under the circumstances, the error was harmless beyond a reasonable doubt (see, People v Hamlin, 71 N.Y.2d 750; People v Crimmins, 36 N.Y.2d 230; People v Larmond, 139 A.D.2d 668). The argument which led to the shooting was witnessed by Ganser as well as the bartender. The defendant's fingerprints were found on a glass on top of the bar. Ganser was able to provide a detailed description of the roles played by each defendant during the course of events which culminated in the shootings, and he identified the defendant at a lineup and, again, in court. We, therefore, conclude that the outcome of this case would not have been altered had the trial court excluded the statement of the nontestifying codefendant, which did not even implicate the defendant by name.
Finally, we see no reason to disturb the sentence imposed. Mangano, J.P., Brown, Eiber and Harwood, JJ., concur.