People v. Tomlin

Jun 12, 2007
Versions:41 A.D.3d 620
838 N.Y.S.2d 595

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.

Ordered that the judgment is affirmed.

The record of the Rodriguez hearing (see People v Rodriguez, 79 NY2d 445 [1992]) 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 [2006]; People v James, 259 AD2d 709, 710 [1999]; People v Russo, 243 AD2d 658, 659 [1997]; People v Miller, 232 AD2d 247 [1996]; People v Jenkins, 230 AD2d 806, 807 [1996]; Matter of Bruce C., 224 AD2d 685, 686 [1996]; People v Terry, 224 AD2d 202 [1996]).

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 [2]; People v Gray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), 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 [1984]; People v Campbell, 33 AD3d 716 [2006]; People v Webb, 31 AD3d 796 [2006]; People v Summerville, 22 AD3d 692 [2005]). 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 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, supra).

Crane, J.P., Goldstein, Covello and Dickerson, JJ., concur.