| People v Johnson |
| 2008 NY Slip Op 02175 [49 AD3d 664] |
| March 11, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamesJohnson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anne C. Feigus ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.),rendered February 15, 2006, convicting him of murder in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. The People's case, although circumstantial, includedevidence that at the time of the shooting, the defendant was seen in the immediate vicinity of thevehicle in which the victim was shot, had a motive, fled to Alabama after the incident, and livedunder an assumed identity (see People v Yazum, 13 NY2d 302, 304 [1963]; see also People v Robinson, 10 AD3d696 [2004]; People v Jamison, 173 AD2d 341, 342 [1991]). Accordingly, theevidence was sufficient to permit a rational juror to find the defendant guilty beyond a reasonabledoubt (see People v Contes, 60 NY2d 620 [1983]).
The defendant contends that the prosecution witnesses, because of their criminal historiesand involvement with illegal drugs, should not have been believed by the jury. However,resolution of issues of credibility is primarily a matter to be determined by the jury, which sawand heard the witness, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied542 US 946 [2004]). Upon the exercise of our factual review power (see CPL 470.15[5]), we are satisfied that the verdict of guilt [*2]was not againstthe weight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
When a defendant seeks to introduce evidence that a third party may have committed thecrime, the court must weigh the probative value of such evidence against its potential for undueprejudice, trial delay, and jury confusion (see People v Primo, 96 NY2d 351, 356[2001]). Evidence of third-party culpability may not rest on mere suspicion, surmise, orspeculation (id. at 357; seePeople v Paixao, 23 AD3d 677, 678 [2005]; People v Diehl, 6 AD3d 455 [2004]). Here, the trial court properlydenied the defendant's request to cross-examine a witness regarding an alleged plan by the victimto commit a crime which, if actually committed, might have motivated unnamed third parties tokill the victim. Prudenti, P.J., Miller, Dillon and McCarthy, JJ., concur.