Opinion
April 25, 1995
Appeal from the Supreme Court, Bronx County (Joseph Cerbone, J.).
Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference (People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), the evidence is sufficient as a matter of law to support the verdict finding defendant guilty beyond a reasonable doubt of murder in the second degree. Moreover, upon an independent review of the facts, the verdict was not against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490). While there were some inconsistencies between the identification witness' original description of defendant and his testimony at trial, these inconsistencies did not render his testimony incredible as a matter of law, but presented a question of fact for the jury to determine, and there is no reason to disturb its determination (People v Jorge, 181 A.D.2d 441, 441-442, lv denied 80 N.Y.2d 833).
Defendant's argument that a comment made by the trial court in the course of the charge misled the jury into believing that defendant's mere possession of the gun and presence at the scene was sufficient to support a finding that he acted in concert with codefendant in causing the shooting death of Eugene Miller, thereby depriving him of a fair trial, is unpreserved for appellate review as a matter of law, defendant having agreed to this portion of the charge (CPL 470.05), and we decline to review the issue in the interest of justice. If we were to review, we would find that the charge, viewed in its entirety (see, People v Coleman, 70 N.Y.2d 817), was not misleading. Finally, we perceive no abuse in sentencing discretion.
Concur — Sullivan, J.P., Rosenberger, Wallach, Kupferman and Tom, JJ.