People v. Tullies

Dec 28, 1987
Versions:135 A.D.2d 852
522 N.Y.S.2d 946
1987 N.Y. App. Div. LEXIS 52791

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Fuchs, J.), rendered July 13, 1983, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that his guilt was not proven beyond a reasonable doubt is without merit. Viewing the evidence in a light most favorable to the People (see, People v Contes, 60 NY2d 620, 621), the determination that the defendant murdered the victim is supported by legally sufficient evidence. The defendant was identified as the assailant by a witness who was assaulted and robbed at gunpoint by the defendant and who, after being tied up and placed in the bathroom by the defendant, heard the defendant and the victim struggle and argue over possession of the victim’s radio. Furthermore, this witness then heard a shot and found the victim on the floor. Additionally, two other witnesses on the street at the time saw the defendant at the scene of the crime and one of these two witnesses observed the defendant struggle with the victim prior to hearing the shot. Accordingly, this testimony was sufficient to prove guilt even in the face of defendant’s alibi witnesses. Moreover, upon the exercise of our factual review power, and recognizing the jury’s role in assessing credibility and the weight afforded to a particular witness’s testimony (see, People v Malizia, 62 NY2d 755, 757, cert denied 469 US 932; People v Battease, 124 AD2d 807, 809), we are satisfied that the defendant’s guilt was proven beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

Moreover, having reviewed the defendant’s claim of errors which denied him a fair trial, we find that all of these are either unpreserved for appellate review or without merit. We further find to be without merit the defendant’s claim that the sentence imposed was excessive. There exist no extraordinary circumstances, nor an improvident exercise of discretion by the trial court, warranting a modification of the sentence (see, People v Suitte, 90 AD2d 80; People v Roman, 84 AD2d 851).

Finally, the contentions raised in the defendant’s supplemental pro se brief have been reviewed and found to be without merit. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur.