PEOPLE v. STEWARTSON (2006)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Harkavy, J.), rendered April 10, 2000, convicting him of robbery in the first degree (two counts), 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 identification testimony.

ORDERED that the judgment is affirmed.

 We find unpersuasive the defendant's argument that the lineup was unduly suggestive.   An examination of the lineup photograph leads us to agree with the hearing court's determination that the photograph does not reveal any significant differences in the appearances of the individuals that would cause the defendant to stand out from the others (see People v. Lundquist, 151 A.D.2d 505, 506, 542 N.Y.S.2d 295).

 Contrary to the defendant's contention, the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 374-375, 357 N.Y.S.2d 849, 314 N.E.2d 413) was a provident exercise of its discretion.   The Supreme Court struck an appropriate balance between the probative value of allowing inquiry about certain of the defendant's prior convictions and “bad acts,” and his use of aliases, against the potential prejudice to the defendant (People v. Sobers, 272 A.D.2d 418, 708 N.Y.S.2d 121;  see People v. Springer, 13 A.D.3d 657, 658, 787 N.Y.S.2d 386;  People v. Taylor, 253 A.D.2d 471, 675 N.Y.S.2d 320;  People v. Turner, 239 A.D.2d 447, 657 N.Y.S.2d 756).

 Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).   Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 Further, the defendant's contentions of prosecutorial misconduct during summation are either unpreserved for appellate review (see CPL 470.05[2] ), without merit, or constituted harmless error in light of the overwhelming evidence of the defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 The defendant's contention that the Supreme Court improperly imposed consecutive sentences for his two convictions of robbery in the first degree is without merit, as the subject robberies were predicated upon distinct acts committed against separate victims (see People v. Truesdell, 70 N.Y.2d 809, 523 N.Y.S.2d 429, 517 N.E.2d 1315;  People v. Dieppa, 285 A.D.2d 558, 727 N.Y.S.2d 898;  People v. Rosa, 249 A.D.2d 334, 670 N.Y.S.2d 348).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.