PEOPLE v. ULYSSE

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

The PEOPLE, etc., respondent, v. Sergio ULYSSE, appellant.

Decided: January 31, 2006

ROBERT W. SCHMIDT, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, and JOSEPH COVELLO, JJ. Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Laura Ann McGinn of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered April 9, 2003, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 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.   The evidence presented by the People was sufficient to permit a rational trier of fact to conclude that the defendant was the assailant.   The trial testimony revealed that the complainant had ample opportunity to see the assailant both before and during the incident and pointed out the defendant to the police about an hour after the incident (see People v. Barrer, 257 A.D.2d 364, 684 N.Y.S.2d 190;  People v. Jackson, 168 A.D.2d 633, 563 N.Y.S.2d 468).   In addition, despite initially pointing to a courtroom spectator, during his direct testimony and on cross-examination, the complainant subsequently identified the defendant as the assailant three times (see People v. Mendoza, 218 A.D.2d 672, 630 N.Y.S.2d 362).

 Moreover, 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 contends that the testimony of the complainant lacked credibility and, in fact, established that the defendant was not the assailant.   The weight to be accorded to the evidence presented, however, as well as the resolution of issues as to identification and credibility, are primarily questions to be determined by the jury, which saw and heard the witnesses (see People v. Prahalad, 295 A.D.2d 373, 743 N.Y.S.2d 512;  People v. Purvis, 152 A.D.2d 756, 544 N.Y.S.2d 206).   The jury's “determination should be accorded great deference on appeal and should not be disturbed unless clearly unsupported by the record” (People v. Wells, 18 A.D.3d 482, 483, 794 N.Y.S.2d 125, lv. denied 5 N.Y.3d 811, 803 N.Y.S.2d 40, 836 N.E.2d 1163).   Here, the record supports the jury's determination.

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