PEOPLE v. COLON

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

The PEOPLE, etc., respondent, v. Angel COLON, appellant.

Decided: July 24, 2007

HOWARD MILLER, J.P., WILLIAM F. MASTRO, ROBERT A. LIFSON, and EDWARD D. CARNI, JJ. Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Debevoise & Plimpton LLP [Gordon Eng] of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered April 28, 2005, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the evidence of identification was legally insufficient is unpreserved for appellate review (see CPL 470.05 [2];  People v. Stroman, 27 A.D.3d 589, 813 N.Y.S.2d 105;  People v. Morrison, 18 A.D.3d 887, 795 N.Y.S.2d 468;  People v. Regan, 11 A.D.3d 640, 782 N.Y.S.2d 683).   In any event, 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, beyond a reasonable doubt, the identity of the defendant as the assailant.   The eyewitness had often seen the defendant in the neighborhood and had an ample opportunity to observe him before, during, and after the assault under adequate conditions (see People v. Godbolt, 209 A.D.2d 540, 619 N.Y.S.2d 73;  People v. Laguer, 195 A.D.2d 483, 599 N.Y.S.2d 859;  People v. White, 192 A.D.2d 736, 597 N.Y.S.2d 117;  People v. Pittman, 186 A.D.2d 282, 588 N.Y.S.2d 314).   Moreover, 10 minutes after the assault, the eyewitness identified the defendant during a showup.   The minor discrepancies between the witness's description of the defendant's height, weight, and clothing and his actual physical appearance did not render his testimony incredible as a matter of law (see People v. Rose, 224 A.D.2d 643, 639 N.Y.S.2d 413;  People v. White, supra;  People v. Caballero, 177 A.D.2d 496, 575 N.Y.S.2d 710).

 Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, supra ).

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