PEOPLE v. MARTINEZ

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

The PEOPLE, etc., Respondent, v. Osman MARTINEZ, Appellant.

Decided: November 24, 2003

LEO F. McGINITY, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, and REINALDO E. RIVERA, JJ. Gail Patricia Ennis, Great Neck, N.Y., for appellant. Denis Dillon, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Andrea M. DiGregorio of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Calabrese, J.), rendered April 9, 2002, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the evidence was legally insufficient to support his conviction of robbery in the second degree because the People failed to establish that he shared the intent of his codefendant and a third individual to commit robbery.   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   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] ).

 The defendant's contention that he was denied a fair trial by the admission of bolstering testimony of a police officer who described, on redirect examination, the demeanors of the complainant and another witness when they identified the defendant on the street, and by the prosecutor's reference to this testimony on summation in violation of People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841 is unpreserved for appellate review (see CPL 470.05;  People v. West, 56 N.Y.2d 662, 451 N.Y.S.2d 711, 436 N.E.2d 1313;  People v. Alston, 163 A.D.2d 398, 558 N.Y.S.2d 123).   In any event, this contention is without merit.   The defense counsel opened the door to the issue of the prior out-of-court identifications of the defendant by bringing up the matter on cross-examination of the police officer who was present, thereby allowing the prosecutor to ask questions on the subject on redirect examination (see People v. Melendez, 55 N.Y.2d 445, 451-452, 449 N.Y.S.2d 946, 434 N.E.2d 1324;  People v. Ocean, 292 A.D.2d 545, 739 N.Y.S.2d 735;  People v. Taylor, 142 A.D.2d 410, 421, 536 N.Y.S.2d 825, affd. 75 N.Y.2d 277, 552 N.Y.S.2d 883, 552 N.E.2d 131).

The defendant's present challenge to various remarks made by the prosecutor on summation is also unpreserved for appellate review (see CPL 470.05[2] ).   In any event, the challenged remarks were either fair comment on the evidence, permissive rhetorical comment, responsive to the defense counsel's summation (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), or were not so prejudicial as to constitute reversible 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).

Contrary to the defendant's contention, the County Court providently exercised its discretion in summarily denying, without a hearing, his motion pursuant to CPL 330.30 to set aside the verdict based on newly-discovered evidence, as the defendant failed to establish that the evidence could not have been discovered with due diligence, or that, if received, would have created a probability of a more favorable verdict (see People v. Reddick, 293 A.D.2d 554, 739 N.Y.S.2d 836;  People v. Wells, 289 A.D.2d 599, 735 N.Y.S.2d 815).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

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