PEOPLE v. WILSON (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered September 7, 2005, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention in his supplemental pro se brief, the testimony presented at the pretrial hearing established that his identification by witness Anthony Watts was merely confirmatory, and that branch of the defendant's omnibus motion which was to suppress Watts's identification testimony was thus properly denied (see People v. Garner, 27 A.D.3d 764, 815 N.Y.S.2d 614;  People v. Jenkins, 230 A.D.2d 806, 807, 646 N.Y.S.2d 535;  cf. People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268).

 The defendant's contention that the evidence was legally insufficient to establish his intent to inflict serious physical injury upon the victim is unpreserved for appellate review (see CPL 470.05[2];  People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish that the defendant intended to cause serious physical injury to the victim and caused the victim's death (see Penal Law §§ 10.00[10], 125.20[1];  People v. Bisono, 37 A.D.3d 844, 832 N.Y.S.2d 220;   People v. Love, 37 A.D.3d 618, 619, 830 N.Y.S.2d 723;  People v. Gill, 20 A.D.3d 434, 434-435, 798 N.Y.S.2d 507).   Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The defendant contends that the People's summation remarks constituted reversible error.   However, the comments alleged to be inflammatory and prejudicial were either fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), responsive to arguments and theories presented in the defense summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885), or harmless error (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Hill, 286 A.D.2d 777, 778, 730 N.Y.S.2d 723).

The defendant's remaining contentions, raised in his supplemental pro se brief, are without merit.