PEOPLE v. McLEMORE

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

The PEOPLE, etc., respondent, v. Jerome McLEMORE, appellant.

Decided: September 27, 1999

WILLIAM C. THOMPSON, J.P., WILLIAM D. FRIEDMANN, ROBERT W. SCHMIDT and NANCY E. SMITH, JJ. James D. Licata, New City, N.Y. (Lois Cappelletti of counsel), for appellant. Michael E. Bongiorno, District Attorney, New City, N.Y. (Ellen O'Hara Woods of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered January 11, 1996, convicting him of robbery in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the hearing court correctly determined that clear and convincing evidence established an independent source for the complainant's lineup and in-court identification of the defendant (see, People v. Carney, 212 A.D.2d 721, 622 N.Y.S.2d 803;  People v. Johnson, 211 A.D.2d 730, 621 N.Y.S.2d 372;  People v. Brown, 187 A.D.2d 662, 590 N.Y.S.2d 896;  People v. Daniels, 128 A.D.2d 631, 513 N.Y.S.2d 29;  People v. Bordaux, 124 A.D.2d 810, 508 N.Y.S.2d 531).   Additionally, the court's Sandoval ruling was not an improvident exercise of discretion (see, People v. Rahman, 46 N.Y.2d 882, 414 N.Y.S.2d 683, 387 N.E.2d 614;  People v. Kelland, 208 A.D.2d 954, 618 N.Y.S.2d 96;  People v. Sullivan, 201 A.D.2d 518, 609 N.Y.S.2d 793).

 The appellant claims that his conviction is against the weight of the evidence because the complainant's identification testimony was unreliable as there was no corroborating evidence.   However, 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 jury, 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 was not against the weight of the evidence (see, CPL 470.15[5] ).

The defendant's sentence is not harsh or excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MEMORANDUM BY THE COURT.

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