People v. Austin
| Decision Date | 10 December 1990 |
| Citation | 562 N.Y.S.2d 745,168 A.D.2d 502 |
| Parties | The PEOPLE, etc., Respondent, v. Darryl AUSTIN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Roger L. Camacho, New York City, for appellant, and appellant pro se.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Victor Barall and Linda Cantoni, of counsel), for respondent.
Before BRACKEN, J.P., and KOOPER, HARWOOD and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Huttner, J.), rendered August 18, 1988, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that his guilt was not proven beyond a reasonable doubt and that the verdict was against the weight of the evidence because of inconsistencies between the testimony of the two prosecution witnesses. The defendant further contends that since both prosecution eyewitnesses were individuals of unsavory character, they were not worthy of belief by the jury.
Neither the minor inconsistencies in the testimony of these witnesses nor their criminal histories, rendered their accounts of the murder incredible as a matter of law. Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932) we find that it was legally sufficient to establish the defendant's guilt. Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5].
Since the defendant did not object to the court's instructions to the jury concerning the reconciliation of the inconsistencies in the prosecution witnesses's testimony, his present claim of error is unpreserved for appellate review.
In addition, contrary to defendant's contention, the court's charge repeatedly and accurately conveyed to the jury the concept of reasonable doubt (see, People v. Blackshear, 112 A.D.2d 1044, 493 N.Y.S.2d 32).
The defendant also argues that the so-called "Allen " instructions given to the jury...
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