People v. Winbush
| Decision Date | 20 December 1993 |
| Citation | 199 A.D.2d 447,605 N.Y.S.2d 385 |
| Parties | The PEOPLE, etc., Respondent, v. Nathaniel WINBUSH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert J. Ellis, Jr., New York City, for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Sholom J. Twersky, and Annette G. Hasapidis-Marshall, of counsel), for respondent.
Before COPERTINO, J.P., and PIZZUTO, SANTUCCI and JOY, JJ.
MEMORANDUM BY THE COURT.
Appeals by the defendant from two judgments of the Supreme Court, Kings County (Miller, J.), both rendered January 23, 1991, convicting him of burglary in the third degree under Indictment No. 4970/90, upon a jury verdict, and convicting him of burglary in the third degree under Indictment No. 2331/90, upon his plea of guilty, and imposing sentences. The appeal under Indictment No. 4970/90, brings up for review the denial, after a hearing (Slavin, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgments are affirmed.
The defendant contends that the jury verdict convicting him of burglary in the third degree was not based upon proof beyond a reasonable doubt. Viewing the evidence adduced at the trial in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to support the conviction. A police officer saw the defendant leave a building with cartons which, it later turned out, contained anti-freeze. The lessee of the building testified that the anti-freeze came from the building, and that the defendant did not have permission to enter the building or to remove any property. Although the officer's testimony that he first saw the defendant when the defendant exited the building was contradicted by statements in a felony complaint filed in the Criminal Court, resolution of issues of credibility is primarily for 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 afforded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5].
With respect to Indictment No. 2331/90, the defendant contends that the judgment should be vacated because the...
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