Opinion
2001-04375.
Decided May 24, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered April 11, 2001, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Flaherty, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Leon H. Tracy, Jericho, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Susan Leen Kim of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the showup identification procedure was not unduly suggestive ( see People v. Ponce de Leon, 291 A.D.2d 415; People v. Serrano, 219 A.D.2d 508, 509; People v. Yearwood, 197 A.D.2d 554).
The court providently exercised its discretion in denying the defendant's request to call the complaining witness to testify at the pretrial hearing, since no substantial issues as to the constitutionality of the identification were raised, the People's evidence was not notably incomplete, and the defendant did not otherwise establish a need for the witness's testimony ( see People v. Scott, 290 A.D.2d 522; People v. Padilla, 219 A.D.2d 688).
Viewing the evidence in the light most favorable to the prosecution ( see 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. Moreover, 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 trier of fact, 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 of guilt was not against the weight of the evidence ( see CPL 470.15).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions either are unpreserved for appellate review or without merit.
SANTUCCI, J.P., FLORIO, SCHMIDT and RIVERA, JJ., concur.