PEOPLE v. MARTINEZ (2009)

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered December 8, 2006, convicting him of murder in the second degree, gang assault in the first degree, criminal possession of a weapon in the second degree, reckless endangerment in the second degree, attempted assault in the second degree, and 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, of that branch of the defendant's motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

 The evidence, viewed 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), was legally sufficient to establish the defendant's guilt of each crime beyond a reasonable doubt.   Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see 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;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt on each count 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's contention that identification testimony should have been suppressed because the lineup in which he participated was unduly suggestive is without merit.   Although the defendant was the only participant in the lineup wearing shackles around his ankles, the hearing court credited the testimony of the witnesses who identified the defendant in the lineup that they could not see below the participants' waists, and thus did not see the shackles.   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 (see People v. Wynter, 48 A.D.3d 492, 849 N.Y.S.2d 797).   On this record, there is no basis to disturb the hearing court's determination.

The defendant's contention that certain comments made by the prosecutor deprived him of a fair trial is unpreserved for appellate review (see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370;  People v. Osorio, 49 A.D.3d 562, 563-564, 855 N.Y.S.2d 163;  People v. Outler, 118 A.D.2d 819, 820, 500 N.Y.S.2d 175) and, in any event, is without merit (see People v. Holland, 45 A.D.3d 863, 863-864, 847 N.Y.S.2d 118).

The defendant's remaining contentions are without merit.