Opinion
June 18, 1990
Appeal from the Supreme Court, Kings County (Pesce, J.).
Ordered that the judgment is affirmed.
Since the defendant failed to identify any indicia of suggestiveness in the photographic and lineup identification procedures employed, the hearing court properly declined to compel the production of the complainant (see, People v Peterkin, 151 A.D.2d 407, affd 75 N.Y.2d 985; People v. Chipp, 75 N.Y.2d 327; People v. Tweedy, 134 A.D.2d 467). We note that, in any event, the defendant waived this claim by failing to move, as the court had given him permission to do, to reopen the Wade hearing when further details regarding the circumstances underlying the lineup procedure were adduced at trial.
The defendant's further assertion that the Trial Judge's instructions to the jury regarding his failure to testify deprived him of a fair trial is similarly unavailing. This claim is unpreserved for appellate review since the defendant neither requested that the Trial Judge limit his instruction to the statutory language (see, CPL 300.10) nor registered an exception to the charge as given (see, People v. Autry, 75 N.Y.2d 836). In any event, while the Trial Judge's "no adverse inference" charge in this case was lengthier than prescribed by law, it was neutral in tone and did not diminish the importance of the constitutional right by implying either that the defendant should have testified or that his decision not to testify was a strategic one (see, People v. Ogle, 142 A.D.2d 608). Nor may it be said to have unduly emphasized the defendant's silence, particularly in view of defense counsel's summation comments concerning his client's decision not to take the stand (see, People v. Brown, 150 A.D.2d 472).
The defendant argues that the verdict of guilt was against the weight of the evidence because substantial doubt existed as to the accuracy of the complainant's identification testimony. 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, 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 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 was not against the weight of the evidence (CPL 470.15). Mangano, P.J., Lawrence, Kooper and Harwood, JJ., concur.