Summary
holding that arrest photograph, showing the defendant wearing a red sweatshirt which the complainant had described, was properly admitted after defense counsel "opened the door" during his cross examination of the complaint on the issue of the defendant's attire, and noting that "[i]t is well established that arrest photographs may be admitted to establish a defendant's appearance at the time of the crime"
Summary of this case from Dey v. ScullyOpinion
December 4, 1989
Appeal from the Supreme Court, Kings County (Tomei, J.).
Ordered that the judgment is affirmed.
The evidence adduced at the trial established that on April 3, 1986, at about 6:30 P.M., on Union Street between Third and Fourth Avenues in Brooklyn, the defendant and an accomplice dragged the complainant off his bicycle and into the hallway of a nearby building. While holding the complainant in a headlock, the defendant placed a curved carpet knife to the complainant's throat and demanded his money. The defendant and his accomplice then took $35 from the complainant's pocket. Within minutes after the crime, the complainant flagged down a police car, gave the officers a detailed description of his attackers, and then pointed out the perpetrators on the street less than two blocks away. A curved carpet knife and $35 were recovered from the defendant and his companion upon their arrest.
The defendant's motion for a Wade hearing was properly denied because the identification was made spontaneously and was not the product of an identification procedure arranged by the police (see, e.g., People v Morales, 113 A.D.2d 956; People v Dukes, 97 A.D.2d 445; see also, People v Logan, 25 N.Y.2d 184, 193, cert denied 396 U.S. 1020; People v Robinson, 117 A.D.2d 826).
Nor did the trial court err in admitting into evidence the defendant's arrest photograph. In the instant case, the defense counsel had "opened the door" during his cross-examination of the complainant to the issue of the defendant's attire. The arrest photographs showed the defendant wearing the red sweatshirt which the complainant had described. It is well established that arrest photographs may be admitted to establish a defendant's appearance at the time of the crime, and the possibility that some aspect of the defendant's appearance might be construed as prejudicial will not suffice to overcome the photographs' relevancy (People v Logan, supra; People v Peters, 135 A.D.2d 841).
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. Although the defendant contends that the complainant's testimony contained inconsistencies, 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 (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 (People v Garafolo, 44 A.D.2d 86, 88). In the instant case, "[t]he complainant's testimony did not [waver] on the crucial elements of the crime and the jury properly credited his testimony" (People v Cruz, 142 A.D.2d 588, 589). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15).
Finally, we conclude that the defendant's sentence was not excessive (People v Suitte, 90 A.D.2d 80). Mollen, P.J., Brown, Rubin and Sullivan, JJ., concur.