People v. Johnson

176 A.D.2d 818

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Potoker, J., at hearing; Kooper, J. at trial and sentence), rendered January 12, 1984, convicting him of murder in the second degree (two counts), attempted murder in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony. Justice Kunzeman has been substituted for former Justice Brown (see, 22 NYCRR 670.1).

Ordered that the judgment is affirmed.

This court previously affirmed the judgment of conviction (see, People v Johnson, 133 AD2d 781), but thereafter granted the defendant’s pro se motion for a writ of error coram nobis . based on ineffective assistance of appellate counsel (see, People v Johnson, 149 AD2d 534). This is the defendant’s second appeal from the judgment, which we again affirm.

The defendant was arrested after being identified in a lineup by the complainant Léo Anderson as one of two gunmen who entered a Brooklyn carpet store and fired shots at Anderson and a second man, killing the second man. We agree with the defendant’s contention that the lineup identification should have been suppressed. The People failed to establish at the hearing that the defendant’s initial detention, which concerned an unrelated shooting, was based on probable cause. However, we find that the admission of the lineup identification was harmless inasmuch as Anderson also made an in-court identification of the defendant for which he had an independent source. Anderson testified at trial that he knew the defendant from the neighborhood and recognized him when he entered the carpet store.

The defendant further contends that Anderson’s testimony was incredible as a matter of law. However, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, 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]). 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 NY 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 AD2d 86, 88). The inconsistencies in Anderson’s identification testimony were brought to the attention of the jurors, who, as is apparent from their verdict, chose to credit it nonetheless. In this regard we note that the trial record indicates that Anderson’s prior testimony that he did not recognize the shooters was occasioned by a reluctance to aid the police and/or a fear of reprisal rather than an inability to identify the perpetrators.

We find unpersuasive the defendant’s contention that his trial counsel’s failure to present an alibi defense constituted ineffective assistance of counsel (see, People v Satterfield, 66 NY2d 796; People v Baldi, 54 NY2d 137). At the defendant’s first trial on this indictment, he was represented by different counsel who presented an alibi defense. That trial terminated in a hung jury. At the second trial, the defense strategy was to attack the credibility of the complaining witness. That his strategy ultimately failed does not render counsel’s representation ineffective. Moreover, the defendant stated on the record that he agreed with his counsel’s decision to forego an alibi defense. It is not the province of this court to "second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” (People v Satterfield, supra, at 799-800). We have considered the defendant’s remaining claims regarding ineffective assistance of counsel and find them to be without merit.

We agree with the defendant’s contention that the verdict finding him guilty of both intentional murder and depraved mind murder of the same victim was inconsistent (see, People v Gallagher, 69 NY2d 525). However, inasmuch as the defendant failed to ask the trial court to charge the counts in the alternative rather than in the conjunctive and failed to object to the charge as given, the issue is unpreserved for appellate review and we decline to reverse the conviction in the exercise of our interest of justice jurisdiction (see, People v Johnston, 166 AD2d 667; People v Carey, 151 AD2d 989; People v Smith, 144 AD2d 505). Kunzeman, J. P., Sullivan and Ritter, JJ., concur.