People v. Ross

262 A.D.2d 429, 693 N.Y.S.2d 50, 1999 N.Y. App. Div. LEXIS 6262

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1999
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flug, J.), rendered March 5, 1997, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the People failed to prove his guilt by legally sufficient evidence because the complainant’s testimony was inconsistent, unreliable, and uncorroborated by other evidence is unpreserved for appellate review (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10; People v Udzinski, 146 AD2d 245). In any event, 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. 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). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (see, CPL 470.15 [5]).

We agree with the defendant that the prosecutor improperly commented on the photographic identification of the defendant in his initial opening statements. However, the court gave a sufficient curative instruction and the jury is presumed to have followed it (see, People v Berg, 59 NY2d 294; People v Corrado, 256 AD2d 586). Therefore, reversal is not warranted. Krausman, J. P., McGinity, Feuerstein and Smith, JJ., concur.