| People v Martinez |
| 2009 NY Slip Op 00560 [58 AD3d 870] |
| January 27, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JuanMartinez, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Richard Longworth Hecht,and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered December 8, 2006, convicting him of murder in the second degree, gangassault in the first degree, criminal possession of a weapon in the second degree, recklessendangerment in the second degree, attempted assault in the second degree, and criminalpossession of a weapon in the third degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing, of that branch of the defendant's motionwhich was to suppress identification testimony.
Ordered that the judgment is affirmed.
The evidence, viewed in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), was legally sufficient to establish the defendant's guilt ofeach crime beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt on each countwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).[*2]
The defendant's contention that identification testimonyshould have been suppressed because the lineup in which he participated was unduly suggestiveis without merit. Although the defendant was the only participant in the lineup wearing shacklesaround his ankles, the hearing court credited the testimony of the witnesses who identified thedefendant in the lineup that they could not see below the participants' waists, and thus did not seethe shackles. The credibility determinations of a hearing court are entitled to great deference onappeal, and will not be disturbed unless clearly unsupported by the record (see People v Wynter, 48 AD3d492 [2008]). On this record, there is no basis to disturb the hearing court's determination.
The defendant's contention that certain comments made by the prosecutor deprived him of afair trial is unpreserved for appellate review (see People v Heide, 84 NY2d 943, 944[1994]; People v Osorio, 49 AD3d562, 563-564 [2008]; People v Outler, 118 AD2d 819, 820 [1986]) and, in anyevent, is without merit (see People vHolland, 45 AD3d 863, 863-864 [2007]).
The defendant's remaining contentions are without merit. Prudenti, P.J., Spolzino, McCarthyand Leventhal, JJ., concur.