PEOPLE v. SUMPTER (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach, J.), rendered November 7, 2005, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Starkey, J.), of that branch of the defendant's omnibus motion which was to suppress lineup identification testimony.

ORDERED that the judgment is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress lineup identification testimony is granted, and a new trial is ordered.

The defendant's contention that the evidence was legally insufficient is unpreserved for appellate review as it was not raised before the trial court (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).   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.   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 at 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902).

However, the hearing court erred in denying that branch of the defendant's omnibus motion which was to suppress lineup identification testimony.   The defendant's right to counsel was violated when police officers conducted a lineup without first apprising the defendant's attorney and affording her a reasonable opportunity to participate (see People v. LaClere, 76 N.Y.2d 670, 563 N.Y.S.2d 30, 564 N.E.2d 640).   Further, because the evidence of the defendant's guilt without the erroneously admitted testimony was not overwhelming, the error cannot be deemed harmless, and a new trial is required (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).   However, contrary to the defendant's contention, dismissal of the indictment is not warranted (see People v. Wolters, 41 A.D.3d 518, 838 N.Y.S.2d 117;  but see People v. Hargroves, 296 A.D.2d 581, 745 N.Y.S.2d 579).

The defendant's remaining contentions need not be addressed in light of the foregoing determination.