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People v. Luka

Appellate Division of the Supreme Court of New York, Second Department
Nov 12, 1991
177 A.D.2d 599 (N.Y. App. Div. 1991)

Opinion

November 12, 1991

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


Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (5).

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Although there were some minor inconsistencies in the testimony of the complainant, it is well settled that resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily issues 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 (see, CPL 470.15).

The defendant additionally contends that the court should have barred any cross-examination of him regarding a prior incident in which he shot at the fleeing car of a would-be robber (see, People v. McDonald, 150 A.D.2d 805, 806; People v. Molineux, 168 N.Y. 264, 313; People v. Hudy, 73 N.Y.2d 40). Cross-examination of the defendant on this subject was unnecessary since it failed to establish any element of the crimes under consideration. Nor did this evidence constitute one of the recognized exceptions to the general rule of exclusion (see, People v. Alvino, 71 N.Y.2d 233; People v. Lewis, 69 N.Y.2d 321; People v. McDonald, 150 A.D.2d 805, supra). While cross-examination on this subject should not have been permitted, we find that the error was harmless beyond a reasonable doubt in light of the overwhelming evidence of the defendant's guilt (see, People v. Crimmins, 36 N.Y.2d 230; Penal Law § 35.15 [a]).

We additionally find that the court properly prevented the defendant from calling another witness for the sole purpose of testifying about the complainant's alleged threats to the defendant in the months following the shooting incident. This evidence was not relevant to proving the objective reasonableness of the defendant's conduct at the time of the shooting (see, Penal Law § 35.15 [a]; People v. Goetz, 68 N.Y.2d 96, 105-107), and as a result, the court's limitation was a proper exercise of discretion (see, People v. Pavao, 59 N.Y.2d 282, 288-289; Richardson, Evidence §§ 491, 504 [Prince 10th ed]). We find that the defendant's remaining contentions are either unpreserved for appellate review or without merit (see, CPL 470.05; People v. Pons, 68 N.Y.2d 264, 267; People v. Wooten, 149 A.D.2d 751; People v. Suitte, 90 A.D.2d 80, 83). Bracken, J.P., Sullivan, O'Brien and Ritter, JJ., concur.


Summaries of

People v. Luka

Appellate Division of the Supreme Court of New York, Second Department
Nov 12, 1991
177 A.D.2d 599 (N.Y. App. Div. 1991)
Case details for

People v. Luka

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARIO LUKA, Appellant

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

Date published: Nov 12, 1991

Citations

177 A.D.2d 599 (N.Y. App. Div. 1991)
576 N.Y.S.2d 586

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