People v. Bigelow ( 1984 )

—Appeal by defendant from a judgment of the Supreme Court, Kings County (Hayes, J.), rendered February 18, 1983, convicting him of attempted rape in the first degree, sexual abuse in the first degree, assault in the second degree, and assault in the third degree, upon a jury verdict, and imposing sentence.

Judgment affirmed. This case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (subd 5).

On the evening of April 15, 1982, the complainant was assaulted and sexually abused by a man who attacked her as she was on the way home. Two days later, a witness who had observed the attack spotted the defendant and identified him as the assailant. Police were summoned and the complainant made an on-the-scene identification. Defendant was charged with the crime and, following a jury trial, was convicted of attempted rape in the first degree, sexual abuse in the first degree, assault in the second degree, and assault in the third degree.

Although not raised by defendant in his brief on appeal, our dissenting colleagues have undertaken to review the sufficiency of the evidence underlying the conviction and urge reversal. Under settled principles governing appellate review, however, we are compelled to find that the evidence presented a clear-cut issue of fact, and affirm.

“The standard for reviewing the legal sufficiency of evidence in a criminal case is whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” (People v Contes, 60 NY2d 620, 621, quoting Jackson v Virginia, 443 US 307, 319). We must view the facts most favorably to the People, who prevailed, and assume that the jury credited the prosecution witnesses and gave the prosecution’s evidence the full weight that might reasonably be accorded it (see, e.g., People v Malizia, 62 NY2d 755, 757, cert den_US_, 53 USLW 3324; People v Barnes, 50 NY2d 375, 381; People v Benzinger, 36 NY2d 29, 32). “The rule is well settled that on the review of a conviction in a criminal case where there is any evidence of guilt, the question of reasonable doubt must be left to the jury * * * and the verdict or decision on the facts must ordinarily be deemed conclusive and will not be disturbed unless it is perfectly clear that it is against the weight of the evidence” (People v Atlas, 183 App Div 595, 600, affd 230 NY 629, cited with approval in People v Joyiens, 39 NY2d 197, 203).

Viewed in this light, the evidence is clearly sufficient to support the verdict. The victim observed the defendant for approximately 15 minutes in a well-lit walkway during the attack, and unequivocally identified him at trial. The identification was corroborated by three youthful eyewitnesses.

To be sure, there were inconsistencies in the identification testimony. Further, the defendant presented an alibi defense. But all these inconsistencies were before the jury which evidently resolved them against the defendant. “The accuracy of an eyewitness identification presents an issue of fact for jury resolution” (People v Dukes, 97 AD2d 445; see, also, People v Cannon, 71 AD2d 924) and, as we have noted, “The resolution of questions relating to the credibility of witnesses is properly a function of the jury and * * * may not be overturned lightly on appeal” (People v Rodriguez, 72 AD2d 571; see, also, People v Marin, 102 AD2d 14, 33). The triers of the fact are best “able and entitled to assess, at first hand, the credibility and reliability of the witnesses” (People v De Tore, 34 NY2d 199, 206, cert den sub nom. Wedra v New York, 419 US 1025).

The inconsistencies in the eyewitness identification were fully explored “and there was clearly sufficient evidence in quantity and quality to send this case to the jury for a verdict (People v Joyiens, 39 NY2d 197, 203)” (People v Gruttola, 43 NY2d 116, 122). The verdict does not rest upon “speculation and conjecture” (People v Marin, supra, p 33). Even “apparently uncontroverted alibi testimony * * * [which] is impressive” presents “questions of fact for the jury, to be determined, not only from the words, but also from the demeanor, interest and motives of the witnesses” (People v Regina, 19 NY2d 65, 72).

The claimed errors in the alibi charge were not preserved, and do not warrant reversal (People v Walker, 104 AD2d 573) and the sentence imposed does not warrant appellate modification (see People v Suitte, 90 AD2d 80). Finally, on the facts of this case we decline to exercise interest of justice jurisdiction (CPL 470.15, subd 3, par [c]). Titone, J. P., Lazer and Gibbons, JJ., concur.