People v. Draksin

• Decision Date: 12 December 1988
• Parties: The PEOPLE, etc., Respondent, v. George DRAKSIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 439

535 N.Y.S.2d 439

145 A.D.2d 500

The PEOPLE, etc., Respondent, v. George DRAKSIN, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 12, 1988.

Philip L. Weinstein, New York City (Katherine C. Edgell, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Ray F. Cerreta, of counsel), for respondent.

Before KUNZEMAN, J.P., and WEINSTEIN, RUBIN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered January 5, 1987, convicting him of assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim that his guilt was not proved beyond a reasonable doubt is without merit. 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), particularly the unequivocal testimony of the victim (cf., People v. Reed, 64 N.Y.2d 1144, 490 N.Y.S.2d 726, 480 N.E.2d 340), we find that it was legally sufficient to establish the defendant's guilt. Moreover upon the exercise of our factual review power we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15[5] ). Insofar as the defendant's argument focuses upon alleged inconsistencies in the testimony of the prosecution witnesses, we note that minor discrepancies, as here, do not render the challenged testimony incredible as a matter of law (see, People v. DiGirolamo, 108 A.D.2d 755, 485 N.Y.S.2d 98, lv. denied 64 N.Y.2d 1133, 490 N.Y.S.2d 1028, 479 N.E.2d 831). The question of credibility was properly presented to the trier of fact, and we perceive no basis for disturbing its resolution of this issue (see, People v. Harris, 133 A.D.2d 649, 651, 519 N.Y.S.2d 758; People v. Wadley, 133 A.D.2d 239, 240, 519 N.Y.S.2d 39; People v. Smith, 124 A.D.2d 839, 840, 508 N.Y.S.2d 987; People v. Russo, 118 A.D.2d 740, 500 N.Y.S.2d 73, lv. denied 67 N.Y.2d 1056, 504 N.Y.S.2d 1033, 495 N.E.2d 366).

The defendant also contends that the prosecutor's summation deprived him of a fair trial. Specifically, he argues that the prosecutor impermissibly vouched for the credibility of the complainant. However, the prosecutor's remarks must be evaluated in comparison with the summation of the defense counsel, which attacked the veracity of the People's witnesses. In light of the nature of the statements made by both attorneys in their summations, the comments made by the prosecutor in his summation were not unreasonable and did not deprive the defendant of a fair trial (see, People v. Street, 124 A.D.2d 841, 508 N.Y.S.2d 558; People v. Colon, 122 A.D.2d 151, 504 N.Y.S.2d 530). The propriety of the remarks which the defendant claims were improper because they referred to matters not in evidence or called upon the jury to draw a conclusion not fairly inferable from the evidence were either unpreserved for appellate review due to de...