People v. Wilson

• Decision Date: 11 March 2008
• Docket Number: 2005-08663.
• Citation: 2008 NY Slip Op 02187,49 A.D.3d 673,854 N.Y.S.2d 150
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HARRY WILSON, Appellant.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 673

854 N.Y.S.2d 150

2008 NY Slip Op 02187

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HARRY WILSON, Appellant.

2005-08663.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 11, 2008.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered September 7, 2005, convicting him of manslaughter in the first 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 contention in his supplemental pro se brief, the testimony presented at the pretrial hearing established that his identification by witness Anthony Watts was merely confirmatory, and that branch of the defendant's omnibus motion which was to suppress Watts's identification testimony was thus properly denied (see People v Garner, 27 AD3d 764 [2006]; People v Jenkins, 230 AD2d 806, 807 [1996]; cf. People v Rodriguez, 79 NY2d 445 [1992]).

The defendant's contention that the evidence was legally insufficient to establish his intent to inflict serious physical injury upon the victim is unpreserved for appellate review (see CPL 470.05 [2]; People v Finger, 95 NY2d 894, 895 [2000]; People v Gray, 86 NY2d 10, 19-21 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish that the defendant intended to cause serious physical injury to the victim and caused the victim's death (see Penal Law § 10.00 [10]; § 125.20 [1]; People v Bisono, 37 AD3d 844 [2007]; People v Love, 37 AD3d 618, 619 [2007]; People v Gill, 20 AD3d 434, 434-435 [2005]). Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The defendant contends that the People's summation remarks constituted reversible error. However, the comments alleged to be inflammatory and prejudicial were either fair comment on the evidence (see People v Ashwal, 39 NY2d 105 [1976]), responsive to arguments and theories presented in the defense summation (see People v Galloway, 54 NY2d 396 [1981]), or harmless error (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Hill, 286 AD2d 777, 778 [2001]).

The defendant's...