Opinion
840
April 23, 2002.
Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered August 4, 1999, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.
RAFAEL CURBELO, for respondent.
BRIAN W. STULL, for defendant-appellant.
Before: Nardelli, J.P., Tom, Buckley, Rosenberger, Ellerin, JJ.
Defendant's suppression motion was properly denied. The hearing evidence established that the photo identification was confirmatory and was free from the risk of misidentification through suggestion. The evidence warranted the conclusion that the victim knew defendant for nearly a month through daily, extensive contact as a fellow inmate housed in the same unit (see, People v. Tas, 51 N.Y.2d 915). In any event, the photo array was composed of photographs of persons of reasonably similar appearance (see, People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833), and the evidence fails to support defendant's contention that the photo array was unduly suggestive.
The verdict was not against the weight of the evidence. Issues of credibility, including the weight to be given to the criminal history of the victim and the minor inconsistencies in his testimony, were properly considered by the jury and there is no basis upon which to disturb its determinations.
The court properly rejected defendant's request for a missing witness charge with respect to the correction officer who first attended to the victim following the incident. The People sufficiently established that the officer was not knowledgeable about any material issue because he was in a different part of the facility at the time of the incident and therefore was not in a position to make any relevant observations (see,People v. Kitching, 78 N.Y.2d 532; People v. Gonzalez, 68 N.Y.2d 424, 428; see also, People v. Dianda, 70 N.Y.2d 894). The victim's testimony does not warrant the conclusion that the officer was in a position to observe the flight of the perpetrators.
We perceive no basis for a reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.