Opinion
September 18, 1989
Appeal from the County Court, Suffolk County (Seidell, J.).
Ordered that the judgment is affirmed.
The defendant's challenge to the identification procedures utilized in this case is unavailing. There is no evidence in the record that the photographic identification procedures, the photographic array viewed by the complainant or the lineups from which the complainant selected the defendant were impermissibly suggestive or conducive to irreparable misidentification so as to deny the defendant due process of law (see, Manson v Brathwaite, 432 U.S. 98, 107; Neil v. Biggers, 409 U.S. 188; People v. Logan, 25 N.Y.2d 184, cert denied 396 U.S. 1020). Accordingly, the hearing court properly declined to suppress the complainant's in-court identification testimony.
Many of the contentions raised by the defendant in his pro se supplemental brief concern issues regarding the credibility of the prosecution witnesses and the weight to be given the evidence adduced at the trial. However, it is primarily the function of the jurors to assess conflicting evidence and they may credit some items of evidence while rejecting other evidence (see, People v. Ford, 66 N.Y.2d 428; People v. Tedesco, 143 A.D.2d 155). The jurors could reasonably have decided to credit the identification testimony of the complainant and the circumstantial evidence tying the defendant to the crime and to reject the testimony of the alibi witness. Moreover, in view of our determination that the identification procedures were proper, the resolution of the accuracy of the identification testimony was primarily for the jury (see, People v. Tedesco, supra; People v. Askinazi, 130 A.D.2d 665, 666). 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). Its determination should be accorded 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). 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).
We also hold, contrary to the defendant's contention, that penetration is not an element of the crime of sodomy (see, People v. Griffith, 80 A.D.2d 590; see also, People v. Griffin, 96 A.D.2d 720). Rather, the People were required to prove that the defendant engaged in "deviate sexual intercourse" with the victim; that is that there was contact between the penis and the anus, the mouth and the penis or the mouth and the vulva (Penal Law § 130.00; § 130.50 [1]). Viewing the evidence in the light most favorable to the People (People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.
We have examined the defendant's remaining contentions, including the additional issues raised in his pro se supplemental brief, and find them to be without merit. Thompson, J.P., Bracken, Brown and Eiber, JJ., concur.