People v. Rivera

• Decision Date: 14 December 1987
• Citation: 135 A.D.2d 667,522 N.Y.S.2d 243
• Parties: The PEOPLE, etc., Respondent, v. Daniel RIVERA, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 243

522 N.Y.S.2d 243

135 A.D.2d 667

The PEOPLE, etc., Respondent, v. Daniel RIVERA, Jr., Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 14, 1987.

Bruce J. Cohen, East Meadows, for appellant.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and John F. McGlynn, of counsel), for respondent.

Before BROWN, J.P., and WEINSTEIN, KOOPER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Goodman, J.), rendered March 1, 1982, convicting him of robbery in the first degree, robbery in the second 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.

Contrary to the defendant's contentions, the evidence adduc at the Wade hearing reveals that the photographic array identification procedure was neither improperly conducted nor unduly suggestive (see, People v. Jackson, 108 A.D.2d 757, 484 N.Y.S.2d 913). Although the defendant argues, inter alia, that the two complaining witnesses jointly viewed the photographic array, thereby tainting their identifications of him as the perpetrator, the record clearly establishes otherwise. The hearing testimony discloses that, without prejudicial comment by the police, the complaining witnesses, who were seated some 15 feet apart, separately viewed the arrays, did not converse or confer, and reached independent decisions in respect to their selections (see, People v. Magee, 122 A.D.2d 227, 504 N.Y.S.2d 758; People v. Cummings, 109 A.D.2d 748, 485 N.Y.S.2d 847). The defendant's further contentions regarding the suggestiveness of the array are unavailing (see, People v. Bowers, 128 A.D.2d 541, 512 N.Y.S.2d 473; People v. Coleman, 114 A.D.2d 906, 495 N.Y.S.2d 78).

Moreover, viewing the evidence in a light most favorable to the prosecution, as we must (see, e.g., People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264), we find that, based upon the complainants' opportunity to observe the defendant during the robbery at close range, in a well-illuminated area, " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' " (see, People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932, quoting from Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, reh. denied 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126). Contrary to the defendant's contentions, the jury was entitled to give great weight to the testimony of the eyewitnesses and to reject that of the defendant and his alibi witnesses (see, People v. Hooper, 112 A.D.2d 317, 318, 491 N.Y.S.2d 766; People v. Monaco, 93 A.D.2d 823, 460 N.Y.S.2d 827; see also, People v. Grant, 118 A.D.2d 726, 727, 500 N.Y.S.2d 59, lv. denied 67 N.Y.2d 1052, 504 N.Y.S.2d 1028, 495 N.E.2d 361). Matters of credibility and the weight to be given to the witnesses' testimony are primarily for the jury to determine (se...