PEOPLE v. WOODS (2001)

 Defendant was convicted following a jury trial of one count each of robbery in the first degree (Penal Law §§ 20.00, 160.15[4] ) and endangering the welfare of a child (Penal Law § 260.10[1] ), and two counts of robbery in the second degree (Penal Law §§ 20.00, 160.10[1], [2][a] ). Contrary to defendant's contention, the identification evidence is legally sufficient to support the conviction.   The two robbery victims, each of whom had known defendant for a number of years and were familiar with his voice, identified defendant as one of the robbers by his voice (see, People v. Sylvester, 247 A.D.2d 886, 668 N.Y.S.2d 798, lv. denied 91 N.Y.2d 1013, 676 N.Y.S.2d 141, 698 N.E.2d 970;  People v. Greco, 230 A.D.2d 23, 30, 654 N.Y.S.2d 890, lv. denied 90 N.Y.2d 858, 661 N.Y.S.2d 185, 683 N.E.2d 1059, 90 N.Y.2d 940, 664 N.Y.S.2d 758, 687 N.E.2d 655).   In addition, an eyewitness, who also had known defendant for a number of years, made a visual identification of defendant as defendant ran away from the scene of the crime.   The fact that the robbery victims chose not to identify defendant on the night of the incident “is not contrary to experience” and does not render their testimony incredible as a matter of law (People v. Ventura, 171 A.D.2d 553, 555, 567 N.Y.S.2d 439, lv. denied 77 N.Y.2d 1002, 571 N.Y.S.2d 927, 575 N.E.2d 413).   Bearing in mind that credibility issues are for the jury to determine (see, People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264), we conclude that there is a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion reached by the jury (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further conclude that the verdict is not against the weight of the evidence (see, People v. Bleakley, supra, at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 There is also no merit to the contention of defendant that he was deprived of a fair trial by prosecutorial misconduct.   Supreme Court properly sustained defendant's objections, struck the objectionable questions and comments, and issued an appropriate curative instruction, thereby eliminating any prejudice to defendant (see, People v. Marzug, 280 A.D.2d 974, 975, 721 N.Y.S.2d 220, lv. denied 96 N.Y.2d 904, 730 N.Y.S.2d 801, 756 N.E.2d 89;  People v. Fonder, 211 A.D.2d 445, 446, 621 N.Y.S.2d 54, lv. denied 85 N.Y.2d 938, 627 N.Y.S.2d 1000, 651 N.E.2d 925).

 Defendant failed to preserve for our review his contention that the indictment should be dismissed because the People failed to inform the Grand Jury of exculpatory evidence.  “The proper remedy for improper conduct before the Grand Jury is a motion to dismiss the indictment under CPL 210.35(5)” (People v. Gilliam, 172 A.D.2d 1037, 569 N.Y.S.2d 545, lv. denied 78 N.Y.2d 966, 574 N.Y.S.2d 945, 580 N.E.2d 417).   In any event, the defect, if any, was cured by defendant's use of the alleged exculpatory evidence at trial.   The sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: