PEOPLE v. BOOKER

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

The PEOPLE, etc., Respondent, v. Amin BOOKER, Appellant.

Decided: December 26, 2000

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, FRED T. SANTUCCI and ANITA R. FLORIO, JJ. Lynn W.L. Fahey, New York, N.Y. (Jay L. Weiner of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joseph Huttler of counsel), for respondent.

Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Feldman, J.), rendered September 3, 1998, convicting him of murder in the second degree, attempted murder in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence, and (2) an amended sentence of the same court, imposed September 24, 1998, upon his conviction of reckless endangerment in the first degree.

ORDERED that the judgment and the amended sentence are affirmed.

 It is well settled that 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 of guilt is not against the weight of the evidence (see, CPL 470.15[5]).

 The defendant's contention that the People failed to supply the videotaped Grand Jury testimony of a witness in violation of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64, is unpreserved for appellate review.   “The mere request for material, without any other evidence in the record, is not adequate to preserve the matter for appellate review” (People v. Dixon, 165 A.D.2d 832, 833, 560 N.Y.S.2d 216;  People v. Rashid, 164 A.D.2d 951, 952, 560 N.Y.S.2d 58).   Where, as here, the defense counsel failed to request a specific remedy as a consequence of the People's alleged noncompliance with his request, and where the record is otherwise silent as to whether the material was produced, appellate review of the claim is foreclosed (see, People v. Dixon, supra;  see also, People v. Graves, 85 N.Y.2d 1024, 630 N.Y.S.2d 972, 654 N.E.2d 1220).

MEMORANDUM BY THE COURT.

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