PEOPLE v. EPPS (2001)

Defendant appeals from a judgment convicting him of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (Penal Law § 265.03[2] ).   Defendant was sentenced as a second violent felony offender to concurrent terms, the longest of which is an indeterminate term of 25 years to life.   Defendant contends that the verdict is against the weight of the evidence on the issue of identification;  that County Court erred in summarily denying his CPL 330.30 motion;  and that the sentence is unduly harsh or severe.

 The People's primary witness had observed defendant at several junctures on the night of the murder in well-lighted conditions and at distances ranging from only a few feet to a few inches.   She had been acquainted with defendant as a result of having seen him frequent a certain bar.   The witness described the shooter and his car with particularity and repeatedly identified defendant as the shooter.   Contrary to defendant's contention, the alibi testimony did not preclude the possibility that defendant committed the shooting.   In addition, both defendant and his girlfriend had given a different alibi in their respective statements to police.   It thus cannot be said that the jury “failed to give the evidence the weight it should be accorded” on the issue of identification (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 The court did not err in summarily denying defendant's CPL 330.30 motion.   The information submitted by defendant in support of the motion was not competent evidence and, in any event, was not “of such character as to create a probability that had [it] been received at the trial the verdict would have been more favorable to the defendant” (CPL 330.30[3];  see, People v. Salemi, 309 N.Y. 208, 215-216, 128 N.E.2d 377, cert denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827).   The sentence imposed is not unduly harsh or severe.

Judgment unanimously affirmed.

MEMORANDUM: