Opinion
January 29, 1990
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the judgment is modified, on the law, by reducing the sentence imposed on the conviction of criminal possession of a weapon in the second degree from 7 1/2 to 15 years' imprisonment to 5 to 15 years' imprisonment; as so modified, the judgment is affirmed.
We reject the defendant's contention that the hearing court erred in denying that branch of his omnibus motion which was to suppress his oral and videotaped confessions. The question of the voluntariness of the defendant's statements presented an issue of credibility for the hearing court to resolve, and its determination that the statements were not the product of coercion or an overborne will is fully supported by the record and therefore should not be disturbed (see, People v. McIver, 147 A.D.2d 592; People v. Norris, 122 A.D.2d 82).
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
The defendant's additional contention that the court's alibi charge contained certain imperfections is unpreserved for appellate review. In any event, the court's alibi instructions, taken as a whole, adequately presented the prosecution's burden to the jury, as well as the proper standard for consideration of the alibi defense (see, People v. Canty, 60 N.Y.2d 830; People v Ballard, 140 A.D.2d 529). The court explicitly instructed the jury that the People had the burden of disproving the defendant's alibi beyond a reasonable doubt (see, People v. Victor, 62 N.Y.2d 374; People v. Ballard, supra).
As the minimum term of imprisonment imposed upon the defendant's conviction for criminal possession of a weapon in the second degree could not exceed one third of the maximum term imposed (see, Penal Law § 70.00, 265.03 Penal), we have modified the sentence accordingly. However, we find no basis to otherwise modify the sentence (see, People v. Suitte, 90 A.D.2d 80).
We have examined the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find that they are unpreserved for appellate review or without merit. Mollen, P.J., Mangano, Kunzeman and Kooper, JJ., concur.