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People v. Bennett

Appellate Division of the Supreme Court of New York, Second Department
Nov 21, 1988
144 A.D.2d 564 (N.Y. App. Div. 1988)

Summary

In People v Ayala (144 A.D.2d 564), this court held that Wade hearing testimony, indeed, all suppression hearing testimony, is not included among the types of prior testimony which may be used at a subsequent proceeding if a witness becomes unavailable (see, CPL 670.10).

Summary of this case from People v. Johnson

Opinion

November 21, 1988

Appeal from the Supreme Court, Queens County (Joy, J.).


Ordered that the judgment is modified, on the law, by reducing the minimum terms of imprisonment for the conviction of (1) assault in the first degree under the fifth count of the indictment from 7 1/2 to 5 years, (2) criminal possession of weapon in the second degree from 7 1/2 to 5 years and (3) criminal possession of a weapon in the third degree from 3 1/2 to 2 1/3 years; as so modified, the judgment is affirmed.

The defendant's contention that the People failed to meet their burden of proving his identity as the perpetrator of the crimes for which he was convicted is without merit. Viewing the evidence in the light most favorable to the prosecution, we find, based on the complainant's ability to see the defendant during the commission of the crimes and the subsequent lineup identification, that it was legally sufficient to support the verdict (People v. Contes, 60 N.Y.2d 620, 621). Although there were inconsistencies in the complainant's testimony, the resolution of issues of credibility, as well as the weight to be attributed 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). 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). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15).

Also without merit is the defendant's contention that two instances when the court, during its identification charge, misspoke and used his name instead of the term "the perpetrator", served to deny him his fundamental right to a fair trial. In the context of the entire identification charge, these two minor slips of the tongue cannot be said to have resulted in a usurpation of the jury's prerogative as the sole judge of the defendant's culpability and criminal liability (see, People v Hommel, 41 N.Y.2d 427). People v. Davis ( 73 A.D.2d 693), upon which the defendant relies, clearly does not compel a contrary result.

Finally, we find that the trial court did not improvidently exercise its discretion in imposing the maximum terms of imprisonment for the crimes for which defendant was convicted (see, People v. Farrar, 52 N.Y.2d 302, 305; People v. Suitte, 90 A.D.2d 80, 86-87). However, as conceded by the People, the minimum sentences imposed for the crime of assault in the first degree as charged in the fifth count of the indictment, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree were improper. These offenses are not class B armed felonies (see, CPL 1.20; Penal Law § 70.02). Pursuant to Penal Law § 70.02 (4), the minimum sentence on those charges should have been fixed at one third the maximum (see, People v. Fox, 123 A.D.2d 642, lv denied 68 N.Y.2d 1000; People v. Edwards, 121 A.D.2d 254, lv denied 69 N.Y.2d 710). Thus, the sentence imposed is modified as indicated. Mollen, P.J., Brown, Kooper and Eiber, JJ., concur.


Summaries of

People v. Bennett

Appellate Division of the Supreme Court of New York, Second Department
Nov 21, 1988
144 A.D.2d 564 (N.Y. App. Div. 1988)

In People v Ayala (144 A.D.2d 564), this court held that Wade hearing testimony, indeed, all suppression hearing testimony, is not included among the types of prior testimony which may be used at a subsequent proceeding if a witness becomes unavailable (see, CPL 670.10).

Summary of this case from People v. Johnson
Case details for

People v. Bennett

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TONY BENNETT, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 21, 1988

Citations

144 A.D.2d 564 (N.Y. App. Div. 1988)

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