PEOPLE v. PHILLIPS

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

The PEOPLE of the State of New York, Respondent, v. Marquis PHILLIPS, Defendant-Appellant.

Decided: October 28, 2004

TOM, J.P., LERNER, FRIEDMAN, MARLOW, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York, and Kelley Drye & Warren LLP, New York (Patricia A. Cody of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Ellen Sue Handman of counsel), for respondent.

Judgment, Supreme Court, New York County (Micki A. Scherer, J. on motion;  Bonnie Wittner, J. at jury trial and sentence), rendered January 11, 2002, convicting defendant of two counts of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 2 to 4 years, unanimously affirmed.

Upon defendant's appeal from his conviction, this Court remanded the matter to the Supreme Court for a Wade hearing and held the appeal in abeyance pending a disposition of defendant's suppression motion (4 A.D.3d 233, 771 N.Y.S.2d 658 [2004] ).   Following the hearing held on April 2, 2004 (Scherer, J.), the court, by order dated April 14, 2004, denied defendant's motion to suppress the identification, a determination defendant does not challenge.

 After remand, the only remaining appellate issue is whether the jury's verdict was against the weight of the evidence.   Resolution of issues of credibility are primarily and appropriately determined by the jurors, who saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).   Their determination should be accorded great weight on appeal and should be left undisturbed unless the record clearly does not support it (see People v. Faines, 297 A.D.2d 590, 747 N.Y.S.2d 484 [2002], lv. denied 99 N.Y.2d 558, 754 N.Y.S.2d 210, 784 N.E.2d 83 [2002];  People v. Garafolo, 44 A.D.2d 86, 353 N.Y.S.2d 500 [1974] ).   Upon review of the record, we find that the credibility issues, as well as the issue of identification, were properly presented to the jury, and there is no basis to disturb the resolution thereof (see People v. Johnson, 262 A.D.2d 155, 693 N.Y.S.2d 7 [1999], lv. denied 94 N.Y.2d 798, 700 N.Y.S.2d 432, 722 N.E.2d 512 [1999] ).