PEOPLE v. MEAD (2007)

 Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25 [1] ), criminal possession of a weapon in the second degree (§ 265.03[2] ), and making an apparently sworn false statement in the second degree (§ 210.35).   Contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   With respect to the murder and weapon possession counts, two prosecution witnesses testified that they saw defendant pull out a gun and fire it at the victim.   Another prosecution witness testified that she heard gunshots and then observed the victim lying on the ground and defendant holding a gun.   With respect to the false statement count, the People presented evidence that defendant signed a statement indicating that he was at another location during the entire day of the murder, after the police had informed him that he was signing the statement under penalty of perjury, and a prosecution witness testified that defendant was not present at the other location that day.  “The jury was entitled to resolve issues of credibility in favor of the People” (People v. Walek, 28 A.D.3d 1246, 1246, 812 N.Y.S.2d 915, lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261), and we conclude that the jury did not fail to give the evidence the weight it should be accorded (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Defendant further contends that the photograph of the victim's body was improperly admitted in evidence because its sole purpose was to inflame the jury.   We reject that contention.  “The general rule is that photographs of the deceased are admissible if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence” (People v. Pobliner, 32 N.Y.2d 356, 369, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).   Here, the photograph demonstrates the position and location of the victim's body and thus was properly admitted in evidence.

 We also reject the contention of defendant that the pretrial photo array was unduly suggestive because he wore a red T-shirt, and the other men depicted in the array wore white or gray T-shirts.   Defendant concedes that the men in the photo array were similar in age, race, gender and hairstyle, and we conclude that the court properly determined that the photo array was not unduly suggestive (see People v. Ofield, 280 A.D.2d 978, 979, 720 N.Y.S.2d 678, lv. denied 96 N.Y.2d 832, 729 N.Y.S.2d 453, 754 N.E.2d 213).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: