PEOPLE v. TURNER (2008)

Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the second degree (Penal Law § 130.30[1] ).   By his general motion for a trial order of dismissal, defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, that contention and defendant's further contention that the verdict is against the weight of the evidence are both without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The victim's testimony was not so inconsistent as to render it incredible as a matter of law (see People v. Calabria, 3 N.Y.3d 80, 82, 783 N.Y.S.2d 321, 816 N.E.2d 1257;  People v. Black, 38 A.D.3d 1283, 1285, 832 N.Y.S.2d 375, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661;  People v. Duffy, 299 A.D.2d 914, 750 N.Y.S.2d 228, lv. denied 99 N.Y.2d 628, 760 N.Y.S.2d 109, 790 N.E.2d 283), and we see no reason to disturb the jury's resolution of credibility issues (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Harris, 15 A.D.3d 966, 967, 788 N.Y.S.2d 745, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679).   Finally, we reject defendant's contention that the photo array was unduly suggestive and that Supreme Court therefore erred following the suppression hearing in refusing to suppress the victim's identification testimony (see generally People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).   The photos in the array are “sufficiently similar in appearance so that the viewer's attention is not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection” (People v. Quinones, 5 A.D.3d 1093, 1093, 773 N.Y.S.2d 671, lv. denied 3 N.Y.3d 646, 782 N.Y.S.2d 417, 816 N.E.2d 207;  see People v. Diggs, 19 A.D.3d 1098, 796 N.Y.S.2d 802, lv. denied 5 N.Y.3d 787, 801 N.Y.S.2d 808, 835 N.E.2d 668, rearg. granted and order amended 21 A.D.3d 1438, 801 N.Y.S.2d 551).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: