| People v Carlucci |
| 2011 NY Slip Op 00233 [80 AD3d 621] |
| January 11, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JosephCarlucci, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager and Richard LongworthHecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.),rendered July 29, 2008, convicting him of burglary in the first degree (two counts), assault in the seconddegree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibusmotion which were to suppress his statements to law enforcement officials and identification testimony.
Ordered that the judgment is affirmed.
The defendant's contention that the People were required to provide him with notice that theidentification of the defendant by the victim from a photo array was confirmatory is unpreserved forappellate review (see People v Friel, 53AD3d 667 [2008]; People vGoodwine, 46 AD3d 702 [2007]), and, in any event, without merit (see CPL710.30). The defendant's contention that his oral statements to law enforcement officials should havebeen suppressed because they were not voluntarily made is academic for purposes of this appeal sincethose statements were not introduced at trial (see People v Ericsen, 186 AD2d 219 [1992];People v Adames, 168 AD2d 623 [1990]; People v Smith, 160 AD2d 472 [1990];People v Wilson, 131 AD2d 526 [1987]).
The defendant's contention that the verdict was legally insufficient because the testimony of thevictim was incredible as a matter of law (see People v Gruttola, 43 NY2d 116, 122 [1977]) isunpreserved for appellate review, as it was not raised before the Supreme Court (see CPL470.05 [2]; People v Hawkins, 11NY3d 484 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficientto establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent 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, hearthe testimony, and observe their 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 was not against the weight ofthe evidence (see People v Romero, 7NY3d 633 [2006]).
The defendant's remaining contentions are unpreserved for appellate review and, in any [*2]event, are without merit. Dickerson, J.P., Leventhal, Hall and Austin, JJ.,concur.