Opinion
March 11, 1991
Appeal from the Supreme Court, Westchester County (Martin, J.).
Ordered that the judgment is modified, on the law, by reducing the sentence imposed on the defendant's conviction of sexual abuse in the first degree from six to twelve years imprisonment to three and one-half to seven years imprisonment; as so modified, the judgment is affirmed.
The defendant's claim that the complainant should have testified at the Wade hearing is without merit. It is well settled that only when the defense has established that a pretrial identification was unduly suggestive, after the prosecution has met its initial burden of going forward to demonstrate reasonableness and the lack of suggestiveness, that evidence concerning an independent source for the in-court identification must be elicited from the complainant (see, People v Tweedy, 134 A.D.2d 467). In the case at bar, the prosecution satisfied its initial burden both by demonstrating that the defendant's picture was inserted in a photographic array after an eyewitness familiar with the defendant chose the defendant's picture from a police book containing about 150 photographs, and by establishing that the array contained pictures of individuals who were similar in appearance to the defendant. The defendant failed to meet his ultimate burden of proving that the procedure was unduly suggestive. Hence the hearing court did not commit error in denying the defense counsel's request that the complainant be called as a witness so that the issue of whether there was an independent source for her in-court identification could be explored (see, People v Chipp, 75 N.Y.2d 327, cert denied ___ US ___, 111 S Ct 99).
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. The defendant further contends that his guilt was not established because the complainant's testimony was not credible. However, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented are primarily within the province of the jury, which saw and heard the witness (see, People v Gaimari 176 N.Y. 84, 94). Its determination is entitled to 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).
Contrary to the defendant's further contention, evidence of the complainant's sexual history is irrelevant to the issues at hand and has no bearing on the issue of his guilt or innocence (see, CPL 60.42; People v Crawford, 143 A.D.2d 141, 142).
The defendant's argument that he did not receive a fair trial because the court, in its charge to the jury, defined forcible compulsion by using the "earnest resistance" language which was no longer part of the law at the time the incident at bar occurred (see, Penal Law former § 130.00 [8], as amended by L 1982, ch 560; L 1983, ch 449), is unpreserved for appellate review (see, CPL 470.05). In any event the error is clearly harmless since the defendant benefited by the fact that the jury heard a definition which imposed a higher burden of proof on the People (see, People v McDonald, 125 A.D.2d 500).
The People concede that the court improperly sentenced the defendant for sexual abuse in the first degree as a class C felony. This crime is a class D felony (see, Penal Law § 130.65), and we have modified the sentence accordingly. Thompson, J.P., Kunzeman, Sullivan and Rosenblatt, JJ., concur.