People v. Mustafa

• Decision Date: 13 July 1987
• Parties: The PEOPLE, etc., Respondent, v. Sabur MUSTAFA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 781

517 N.Y.S.2d 781

132 A.D.2d 628

The PEOPLE, etc., Respondent, v. Sabur MUSTAFA, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 13, 1987.

George T. Dunn, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Lisa Margaret Smith, of counsel; Daniel Singer, on the brief), for respondent.

Before NIEHOFF, J.P., and LAWRENCE, WEINSTEIN and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bourgeois, J.), rendered January 3, 1985, convicting him of robbery in the first degree, robbery in the second degree, attempted robbery in the first degree, assault in the second degree (two counts), 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 contends that his guilt was not proven beyond a reasonable doubt because of inconsistencies in the testimony of the People's witnesses. It is well settled that minor discrepancies between the testimony of witnesses is not sufficient to show that the testimony of one or more of the witnesses is 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). In the instant case, although the witnesses' accounts of the number of people in the store at the time of the robbery and the order in which the defendant and his codefendants entered the store differed slightly, these variances were not sufficient to render their testimony incredible. That two or more witnesses give conflicting testimony simply creates a credibility question for the jury, to be determined by them in the context of the totality of the evidence before them (see, People v. Jackson, 65 N.Y.2d 265, 491 N.Y.S.2d 138, 480 N.E.2d 727). In this regard, it is firmly established that credibility and the weight afforded each piece of evidence is primarily within the province of the jury, and will not be lightly disturbed by this court on appeal (see, People v. Concepcion, 38 N.Y.2d 211, 379 N.Y.S.2d 399, 341 N.E.2d 823; People v. Molina, 127 A.D.2d 796, 512 N.Y.S.2d 193; People v. Bauer, 113 A.D.2d 543, 497 N.Y.S.2d 115, lv. denied, 67 N.Y.2d 648, 880, 501 N.Y.S.2d 1031, 492 N.E.2d 1238). Because a rational trier of fact would have been warranted in crediting the testimony of the People's witnesses and rejecting the defense, and...