People v. Quevedo

156 A.D.2d 265, 548 N.Y.S.2d 655, 1989 N.Y. App. Div. LEXIS 15728

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 1989
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Robert M. Haft, J.), rendered October 17, 1986, convicting defendant, after a jury trial, of the crimes of robbery in the third degree and grand larceny in the third degree and, upon resentence for violation of probation, of attempted burglary in the third degree, and sentencing him, as a predicate felony offender, to concurrent terms of 3 Vi to 7 years’, 2 to 4 years’ and 1 Vi to 4 years’ imprisonment, respectively, unanimously affirmed.

We are not persuaded that minor inconsistencies in the height and weight given in identification testimony of the victim and an eyewitness, on the one hand, and defendant’s appearance, on the other hand, rendered the identification testimony incredible as a matter of law. It is well settled that it is the jury’s function to evaluate the credibility of witnesses (People v Parks, 41 NY2d 36, 47) and here it had a full opportunity to compare defendant’s appearance with testimony of his description at the time of the crime. Defendant’s challenges to the prosecutor’s comments on summation are unpreserved as a matter of law (CPL 470.05 [2]) and we find no reason to review them in the interest of justice, although, if we did, we would find them unobjectionable. Concur—Kupferman, J. P., Asch, Kassal, Wallach and Rubin, JJ.