People v. Moore

• Decision Date: 05 March 1990
• Citation: 552 N.Y.S.2d 389,159 A.D.2d 521
• Parties: The PEOPLE, etc., Respondent, v. Vincent MOORE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 389

552 N.Y.S.2d 389

159 A.D.2d 521

The PEOPLE, etc., Respondent, v. Vincent MOORE, Appellant.

Supreme Court, Appellate Division Second Department.

March 5, 1990.

Linda Atlas, Brooklyn, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Bill Gianaris, of counsel), for respondent.

Before LAWRENCE, J.P., and RUBIN, SULLIVAN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered June 19, 1986, convicting him of rape in the first degree (two counts), sodomy in the first degree, and unlawful imprisonment, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

At approximately 9:00 P.M. on February 19, 1985, the defendant and two others lured and then dragged the then 18-year-old victim to the roof of a building in Queens, where they raped and sodomized her.

On appeal, the defendant raises numerous issues, most of which are unpreserved for appellate review, and none of which have merit.

With respect to the defendant's contention that the jury verdict is contrary to the weight of the evidence because the complaining witness is marginally retarded, we note that resolution of issues of credibility and 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, 68 N.E. 112). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (cf., People v. Garafolo, 44 A.D.2d 86, 353 N.Y.S.2d 500). In the instant case, the complainant testified that she had previously been acquainted with the defendant, whom she knew by the street name "Understanding", that she saw him earlier on the day of the crime, and that he "started" the rape. The defendant was an active participant throughout the victim's lengthy ordeal, during the course of which he at various times held her down, sodomized her, and threatened to throw her off the roof if she did not cooperate. At no time did the complainant's identification of the defendant waiver. In addition, although the defendant and his witnesses offered alibi testimony, it was riddled with inconsistencies. Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15[5].

The defendant's allegation that the testimony of two police witnesses regarding his placement in a lineup "bolstered" the complainant's identification testimony in violation of the principles enunciated in People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841, is unpreserved for appellate review (People v. West, 56 N.Y.2d 662, 451 N.Y.S.2d 711, 436 N.E.2d 1313; People v. Faison, 120 A.D.2d 744, 502 N.Y.S.2d 523). In any event, the officers' testimony did not have a bolstering effect because neither policeman referred to the victim's identification of the defendant (People v. Middleton, 128 A.D.2d 554, 512 N.Y.S.2d 489).

Also unpreserved for appellate review is the defendant's contention that he was denied his constitutional right to a speedy trial pursuant to CPL 30.20, as this ground was not raised in his pretrial motion pursuant to CPL 30.30 (see, People v. Jordon, 62 N.Y.2d 825, 477 N.Y.S.2d 605, 466 N.E.2d 145; People v. Mucciolo, 104 A.D.2d 905, 480 N.Y.S.2d 516; People v. D'Angelo, 104 A.D.2d 662, 479 N.Y.S.2d 1021). In any event, the defendant's right to a speedy trial was not violated since the 15 months between his arrest and the trial did not constitute an excessive delay (cf., People v. Rainey, 28 N.Y.2d 863, 322 N.Y.S.2d 255, 271 N.E.2d 231, cert. denied 404 U.S. 861, 92 S.Ct. 163, 30 L.Ed.2d 105; People v. Kelly, 38 N.Y.2d 633, 382 N.Y.S.2d 1, 345 N.E.2d 544). The complexity of the case and the gravity of the charges made such delay as there was understandable; the defendant was not incarcerated in the interim; and the defendant has failed to demonstrate how the death of his father prior to trial prejudiced his defense, since the father's testimony would have been cumulative as the fifth alibi witness to testify that the defendant was at home on the night of the rape. Since analysis of all of the factors to be considered in evaluating whether there has been a deprivation of the constitutional right to a speedy trial (see, People v....