People v. Jackson

• Decision Date: 13 April 1992
• Parties: The PEOPLE, etc., Respondent, v. Christopher JACKSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 473

582 N.Y.S.2d 473

182 A.D.2d 705

The PEOPLE, etc., Respondent, v. Christopher JACKSON, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 13, 1992.

Frey & Scheinman, Hempstead (Douglas M. Scheinman, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (John F. McGlynn and Daniel Butler, of counsel), for respondent.

Before THOMPSON, J.P., and HARWOOD, BALLETTA and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Harrington, J.), rendered February 13, 1991, convicting him of robbery in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's generalized motion to dismiss was insufficient to preserve his claim that the proof of identification was legally insufficient to establish his guilt beyond a reasonable doubt (People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4). In any event, viewing the evidence in the light most favorable to the prosecution ( People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the identification testimony of the complainant, who recognized the defendant from having seen him on 15 to 20 previous occasions at the gas station where the robbery occurred, as well as the testimony of an eyewitness, was legally sufficient to establish the defendant's guilt. Furthermore, the minor inconsistency in the height of the defendant given in the identification testimony of the complainant, on the one hand, and the defendant's appearance, on the other hand, did not render the identification testimony credible as a matter of law ( People v. Harvey, 175 A.D.2d 138, 572 N.Y.S.2d 27).

The 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 (People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112). The jury's determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (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].

The defendant also contends that the court improperly denied his request to submit the crime of robbery in the third degree as...