Opinion
No. 2001-03266.
June 12, 2007.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered April 5, 2001, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Pamela D. Hayes, New York, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.
Before: Crane, J.P., Goldstein, Covello and Dickerson, JJ.
Ordered that the judgment is affirmed.
The record of the Rodriguez hearing ( see People v Rodriguez, 79 NY2d 445) supports the hearing court's determination that the witnesses were impervious to police suggestion, and thus that their identifications were confirmatory ( see People v Rodriguez, supra; People v Garner, 27 AD3d 764; People v James, 259 AD2d 709, 710; People v Russo, 243 AD2d 658, 659; People v Miller, 232 AD2d 247; People v Jenkins, 230 AD2d 806, 807; Matter of Bruce C., 224 AD2d 685, 686; People v Terry, 224 AD2d 202).
The defendant's contention that the evidence was legally insufficient to prove depraved indifference murder beyond a reasonable doubt is unpreserved for appellate review ( see CPL 470.05; People v Gray, 86 NY2d 10, 19). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the elements of depraved indifference murder beyond a reasonable doubt ( see People v Fenner, 61 NY2d 971; People v Campbell, 33 AD3d 716; People v Webb, 31 AD3d 796; People v Summerville, 22 AD3d 692). Further, the evidence was legally sufficient to establish the defendant's identity as the perpetrator.
Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal ( see People v Romero, 7 NY3d 633, 644-645; People v Mateo, 2 NY3d 383, 410, cert denied 542 US 946). Upon the exercise of our factual review power ( see CPL 470.15), we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero, supra).