PEOPLE v. DRAKE

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Costello DRAKE, Appellant.

Decided: February 04, 1998

Before DENMAN, P.J., and LAWTON, BALIO, BOEHM and FALLON, JJ. Linda S. Reynolds by Robert Hallborg, Jr., Buffalo, for Appellant. Frank J. Clark by Steven Meyer, Buffalo, for Respondent.

Defendant appeals from a judgment convicting him upon a jury verdict of intentional murder in the second degree and criminal possession of a weapon in the second degree.

 The contention of defendant that County Court erred in refusing to allow proof that he was misidentified in the commission of an unrelated robbery is without merit.   The fact that defendant was misidentified as a perpetrator of a robbery that occurred nine months after the instant crime is irrelevant (see, People v. Greenwood, 166 A.D.2d 353, 561 N.Y.S.2d 19, lv. denied 77 N.Y.2d 839, 567 N.Y.S.2d 207, 568 N.E.2d 656).

 Also without merit is the contention of defendant that his conviction of intentional murder is against the weight of the evidence because the testimony of the eyewitnesses who identified defendant as the shooter was unreliable.   There were five eyewitnesses to the shooting, four of whom identified defendant as the shooter.   Although there were inconsistencies in the testimony of the witnesses, they were not such as to make their testimony “ ‘incredible and unbelievable’ ” (People v. Shedrick, 104 A.D.2d 263, 274, 482 N.Y.S.2d 939, affd. 66 N.Y.2d 1015, 499 N.Y.S.2d 388, 489 N.E.2d 1290, rearg. denied 67 N.Y.2d 758, 500 N.Y.S.2d 1028, 490 N.E.2d 1234).

We reject defendant's further contention that the conviction of murder in the second degree should be reduced to the lesser included offense of manslaughter in the first degree or manslaughter in the second degree.   The court charged the jury on those lesser included offenses and instructed it on the defense of intoxication, explaining that intoxication can negate the intent required for intentional murder.

Finally, defendant's sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: