People v. McCrimmon

• Decision Date: 08 June 1987
• Citation: 516 N.Y.S.2d 304,131 A.D.2d 598
• Parties: The PEOPLE, etc., Respondent, v. Douglas McCRIMMON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 304

516 N.Y.S.2d 304

131 A.D.2d 598

The PEOPLE, etc., Respondent, v. Douglas McCRIMMON, Appellant.

Supreme Court, Appellate Division Second Department.

June 8, 1987.

John F. Clennan, Ronkonkoma, for appellant, and appellant pro se.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Leonard Joblove and Andrew J. Frisch of counsel), for respondent.

Before THOMPSON, J.P., and LAWRENCE, WEINSTEIN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heller, J.), rendered April 16, 1985, convicting him of robbery in the first degree and grand larceny in the third 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.

We agree with the hearing court that the complainant's identification of the defendant at the crime scene, four days after the incident, was not unduly suggestive. The purpose of the complainant's observation of the defendant was to confirm that the right person would be arrested (see, People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924; People v. Hooper, 112 A.D.2d 317, 318, 491 N.Y.S.2d 766).

The testimony of the complainant alone was sufficient to support the conviction (see, People v. Arroyo, 54 N.Y.2d 567, 578, 446 N.Y.S.2d 910, 431 N.E.2d 271, cert. denied 456 U.S. 979, 102 S.Ct. 2248, 72 L.Ed.2d 855). The jury was entitled to give great weight to his testimony and to reject that of the defendant and his alibi witnesses. Matters of credibility, reliability and the weight to be given to the witnesses' testimony are primarily for the jury to determine (see, People v. Hooper, supra, 112 A.D.2d at 318, 491 N.Y.S.2d 766). Upon the exercise of our factual review power we are satisfied that the evidence established the defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15[5] ). Further, contrary to the defendant's contention, the trial court gave a thorough charge to the jury on the issue of identification (see, 1 CJI [NY] 10.01 at 580; People v. Daniels, 88 A.D.2d 392, 453 N.Y.S.2d 699; see, also, People v. Whalen, 59 N.Y.2d 273, 276, 464 N.Y.S.2d 454, 451 N.E.2d 212).

The defendant further claims that the admission of his statement to the police on the People's direct case warrants reversal. However, since the defendant did not object to the admission of the statement at the time it was offered into evidence, the issue is not preserved for our review as a matter of law (see, People v. Rivera, 53 N.Y.2d 1005, 442 N.Y.S.2d 475, 425 N.E.2d 863). With respect to the defendant's contention that his statement should have been suppressed because it was taken in contravention of his right to counsel, we note that the only issue raised in his omnibus motion is the voluntariness of the statement. While the court (Coffinas, J.), had apparently ordered Wade and Huntley hearings, the trial court only held a Wade hearing, without objection by trial counsel. Accordingly, there is no basis in this record upon which we may determine that the statement was...