People v. Ortega

• Decision Date: 03 April 1995
• Parties: The PEOPLE, etc., Respondent, v. Rubin ORTEGA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 574

625 N.Y.S.2d 574

214 A.D.2d 591

The PEOPLE, etc., Respondent, v. Rubin ORTEGA, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 3, 1995.

Hirschhorn & Weinberg, Great Neck (Pamela H. Hirschhorn and Andrew Hirschhorn, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie and Noreen Healey, of counsel), for respondent.

Before BRACKEN, J.P., and PIZZUTO, HART and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered March 6, 1991, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Zweibel, J.), of the branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The prosecutor acted within his discretion in declining to present an eyewitness to the crime to the Grand Jury because he reasonably believed that the witness would perjure himself (see generally, People v. Lancaster, 69 N.Y.2d 20, 511 N.Y.S.2d 559, 503 N.E.2d 990, cert. denied 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697; People v. Perry, 187 A.D.2d 678, 590 N.Y.S.2d 251; People v. Kaba, 177 A.D.2d 506, 575 N.Y.S.2d 716). In any event, any defect in the Grand Jury presentation was cured when the witness testified at trial on behalf of the defendant (see, People v. Perry, supra; People v. Gilliam, 172 A.D.2d 1037, 569 N.Y.S.2d 545).

The hearing court properly denied the branch of the defendant's omnibus motion which was to suppress identification testimony. The defendant failed to show a substantial likelihood of misidentification with respect to the photographic and lineup identification procedures (see generally, People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379; People v. Smoot, 209 A.D.2d 731, 619 N.Y.S.2d 143; People v. Deye, 192 A.D.2d 547, 596 N.Y.S.2d 95).

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (see, CPL 470.15[5]. 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 (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112). Its determination should be accorded great...