PEOPLE v. GUITY

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

The PEOPLE of the State of New York, Respondent, v. Crispin GUITY, Defendant-Appellant.

Decided: October 13, 2005

ANDRIAS, J.P., FRIEDMAN, SULLIVAN, GONZALEZ, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Lyssa M. Sampson of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered December 4, 2003, convicting defendant, after a jury trial, of attempted murder in the second degree, criminal possession of a weapon in the second degree and assault in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 12, 8 and 6 years, respectively, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and otherwise affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Issues of credibility and identification, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis for disturbing its determinations (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).

As the People concede, since the crime was committed prior to the effective date of the legislation providing for imposition of a DNA databank fee (Penal Law § 60.35[1][a][v] [former (1)(e) ] ), that fee should not have been imposed.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.