People v. Rivera

Feb 1, 1991
Versions:170 A.D.2d 962
566 N.Y.S.2d 131
1991 N.Y. App. Div. LEXIS 1681

Judgment unanimously affirmed. Memorandum: Defendant contends that his conviction of murder in the second degree (Penal Law §§ 20.00, 125.25 [3]), i.e., felony murder, is not supported by sufficient evidence. We disagree. At trial, the People presented evidence showing that defendant, George Rios and two other men appeared at 432 Jay Street in Rochester early in the morning of October 16, 1988. Defendant and Rios approached Willie Cruz, Rios drew a gun and demanded money and drugs from Cruz. After emptying his pockets and saying that he had no money or drugs, Cruz attempted to back away from defendant and Rios. Cruz ran, and defendant, Rios and one of the other men began to chase him. At about this time, Ivan McIntyre came to the aid of Cruz. When McIntyre asked what was going on, defendant told Rios to "shoot him”. Rios thereupon fatally shot McIntyre. Viewing that evidence in the light most favorable to the People, we find that there was a valid line of reasoning and permissible inferences to be drawn therefrom sufficient to support the jury’s verdict (see, People v Bleakley, 69 NY2d 490, 495).

Defendant further complains that his conviction cannot stand because the testimony of Cruz was not worthy of belief. This contention also lacks merit. Matters of credibility are in the particular province of the trier of fact, and the jury’s resolution of credibility issues should not be displaced unless clearly irrational (see, People v Cohen, 223 NY 406, 411; People v Shedrick, 104 AD2d 263, 274, affd 66 NY2d 1015, rearg denied 67 NY2d 758). On the evidence presented here, the jury’s consideration of Cruz’s testimony cannot be considered irrational. We disagree with defendant’s contention that the jury necessarily rejected Cruz’s testimony when it acquitted defendant of intentional murder. The jury may well have believed Cruz’s testimony, but concluded that defendant did not intend for Rios to kill McIntyre.

We have examined defendant’s remaining contentions and find them to be without merit. (Appeal from Judgment of Monroe County Court, Wisner, J.—Murder, 2nd Degree.) Present—Dillon, P. J., Doerr, Denman, Green and Lowery, JJ.