Opinion
December 14, 1987
Appeal from the County Court, Nassau County (Goodman, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, the evidence adduced at the Wade hearing reveals that the photographic array identification procedure was neither improperly conducted nor unduly suggestive (see, People v Jackson, 108 A.D.2d 757). Although the defendant argues, inter alia, that the two complaining witnesses jointly viewed the photographic array, thereby tainting their identifications of him as the perpetrator, the record clearly establishes otherwise. The hearing testimony discloses that, without prejudicial comment by the police, the complaining witnesses, who were seated some 15 feet apart, separately viewed the arrays, did not converse or confer, and reached independent decisions in respect to their selections (see, People v Magee, 122 A.D.2d 227; People v Cummings, 109 A.D.2d 748). The defendant's further contentions regarding the suggestiveness of the array are unavailing (see, People v Bowers, 128 A.D.2d 541; People v Coleman, 114 A.D.2d 906).
Moreover, viewing the evidence in a light most favorable to the prosecution, as we must (see, e.g., People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), we find that, based upon the complainants' opportunity to observe the defendant during the robbery at close range, in a well-illuminated area, "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'" (People v Contes, 60 N.Y.2d 620, 621, quoting from Jackson v Virginia, 443 U.S. 307, 319, reh denied 444 U.S. 890). Contrary to the defendant's contentions, the jury was entitled to give great weight to the testimony of the eyewitnesses and to reject that of the defendant and his alibi witnesses (see, People v Hooper, 112 A.D.2d 317, 318; People v Monaco, 93 A.D.2d 823; see also, People v Grant, 118 A.D.2d 726, 727, lv denied 67 N.Y.2d 1052). Matters of credibility and the weight to be given to the witnesses' testimony are primarily for the jury to determine (see, People v Gaimari, 176 N.Y. 84, 94; People v Garafolo, 44 A.D.2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the defendant's guilt was established beyond a reasonable doubt and the verdict was not against the weight of the evidence (see, CPL 470.15).
Finally, we reject the contention that certain of the prosecutor's remarks — many of which are unpreserved for appellate review — denied the defendant a fair trial. We note in particular that it was the defense counsel who first elicited testimony of an alibi witness that the defendant and the witness had participated in a burglary unrelated to the crimes charged at bar. In any event, we find no reasonable probability that the comments complained of had an effect on the outcome of the trial (see, People v Galloway, 54 N.Y.2d 396; People v Roseman, 78 A.D.2d 878, 879).
We have reviewed the defendant's remaining contentions — including his argument with respect to the speedy trial issue — and have found them to be without merit. Brown, J.P., Weinstein, Kooper and Sullivan, JJ., concur.