PEOPLE v. STEVENS (2007)

Appeal by the defendant from a judgment of the County Court, Westchester County (Lange, J.), rendered July 10, 1998, convicting him of murder in the second degree (three counts), manslaughter in the second degree, robbery in the first degree, burglary in the first degree, and assault in the first degree (two counts), upon jury verdicts, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress identification testimony and his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to the police.  “The credibility determinations of a hearing court are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record” (People v. Jenneman, 37 A.D.3d 736, 737, 832 N.Y.S.2d 207, lv. denied 9 N.Y.3d 866, 840 N.Y.S.2d 895, 872 N.E.2d 1201;  see People v. Myers, 17 A.D.3d 699, 700, 793 N.Y.S.2d 537;  People v. Davis, 261 A.D.2d 411, 412, 690 N.Y.S.2d 71).   The record supports the hearing court's decision to credit the testimony of the police witnesses, which established that the defendant's right to counsel had not attached when he made inculpatory statements to them, and that his statements were voluntary (see People v. Blanchard, 279 A.D.2d 808, 810, 718 N.Y.S.2d 722).

 The hearing court also properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony based on a lineup.   Contrary to the defendant's contention, the lineup was lawful since he was already in lawful custody when he was placed in the lineup (see People v. Smith, 21 A.D.3d 386, 387, 799 N.Y.S.2d 569;  People v. Wright, 270 A.D.2d 213, 214, 706 N.Y.S.2d 29).   Further, the mere fact that the complainant who identified the defendant in the lineup had seen a newspaper photograph of the defendant as a possible suspect did not violate the defendant's due process rights, since the hearing evidence showed that her viewing the photograph was fortuitous and not the result of police involvement (see People v. Morales, 228 A.D.2d 704, 644 N.Y.S.2d 976;  People v. Brown, 159 A.D.2d 411, 412, 553 N.Y.S.2d 322).   Contrary to the further contention of the defendant, the identification procedure involving a photograph array was not unduly suggestive because of the differing skin tones of the subjects depicted therein (see People v. Arroyo, 38 A.D.3d 792, 832 N.Y.S.2d 278, lv. denied 9 N.Y.3d 839, 840 N.Y.S.2d 766, 872 N.E.2d 879;  People v. Quinones, 5 A.D.3d 1093, 773 N.Y.S.2d 671).

The defendant's contention that the evidence was legally insufficient to sustain his convictions is not preserved for appellate review (see CPL 470.05 [2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Moore, 37 A.D.3d 498, 829 N.Y.S.2d 603, lv. denied 8 N.Y.3d 988, 838 N.Y.S.2d 491, 869 N.E.2d 667).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.

Resolution of issues of credibility is primarily a question 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 verdicts of guilt were 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 sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).

The defendant's remaining contentions, raised in Points IV and VI through XI of his brief, are without merit.