Summary
holding that "[t]he trial ruling requiring the defendant to display his tatooed arms for the witness did not violate his privilege against self-incrimination, since it merely compelled the defendant to exhibit physical characteristics"
Summary of this case from Rainey v. StateOpinion
February 29, 1988
Appeal from the Supreme Court, Queens County (Cohen, J.).
Ordered that the judgment is affirmed.
The hearing court properly permitted the complainant to make an in-court identification of the defendant, although evidence of the showup identification had been suppressed. Clear and convincing evidence supported the determination that the complainant had an independent basis upon which to identify his assailant (see, People v Ballott, 20 N.Y.2d 600, 606-607); he had observed the defendant as he approached, as well as face to face from only inches away during the altercation (see, People v Wright, 112 A.D.2d 179).
The defendant contends that the complainant, because of his criminal history, should not have been believed by the jury. However resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily 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 (CPL 470.15).
Moreover, the defendant's conviction was obtained following a fair trial. The court did not abuse its discretion in finding that there was not a good-faith basis for a certain question put to the complaining witness during cross-examination. The trial ruling requiring the defendant to display his tattooed arms for the witness did not violate his privilege against self-incrimination, since it merely compelled the defendant to exhibit physical characteristics (see, United States v Dionisio, 410 U.S. 1, 5-6; People v Brown, 133 A.D.2d 464).
The trial court properly refused to give the jury a missing witness charge concerning the police officers the complainant spoke with after the incident. The testimony of those officers could only have been either cumulative, immaterial or irrelevant (see, People v Almodovar, 62 N.Y.2d 126).
The sentence imposed was appropriate under the circumstances. We have considered the defendant's remaining contentions and find that they are unpreserved for appellate review and, in any event, without merit. Mollen, P.J., Bracken, Spatt and Sullivan, JJ., concur.