People v. Almonte , 522 N.Y.S.2d 928 ( 1987 )

— Appeal by the defendant from a judgment of the County Court, Suffolk County (Weissman, J.), rendered July 19, 1984, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification evidence.

Ordered that the judgment is affirmed.

The record demonstrates that the pretrial photographic identification procedure utilized in this case was fair and nonsuggestive, and, in any event, the complainant had an independent source upon which to base his identification of the defendant. The hearing court accordingly properly denied the defendant’s motion to suppress the complainant’s in-court identification by the victim. The introduction of evidence of the photographic identification at trial was not error because defense counsel "opened the door” to the introduction of this evidence by inquiring into the basis of the defendant’s initial arrest and by referring to a report which characterized this photographic identification as "suspect” (see, People v Bolden, 58 NY2d 741). Under these circumstances, the prosecutor was then entitled to demonstrate the fairness of the photographic identification procedure (see, People v Grate, 122 AD2d 853, lv denied 68 NY2d 1000).

Viewing the evidence presented at trial in the light most favorable to the prosecution, as we are obligated to do (see, People v Contes, 60 NY2d 620), we find that the evidence was legally sufficient to sustain the defendant’s conviction. The victim testified that the defendant, whom he had known for 3 to 5 years, shot him at point-blank range while he was sitting in his car in the lighted parking lot of the Continental Restaurant in Lindenhurst on the evening of September 15, 1982. Ramon Barrientos testified that the defendant admitted to him the following day that he had shot and injured Octavio Torres the night before at the Continental Restaurant. That the defendant provided the testimony of several alibi witnesses who, somewhat equivocally, testified that he was inside the restaurant when the shooting occurred does not render the proof insufficient. Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v Gaimari, 176 NY 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 AD2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]).

We note that we find nothing in the record warranting a reduction of the defendant’s sentence.

We have reviewed the defendant’s remaining contentions and find them to be unpreserved for appellate review or without merit. Thompson, J. P., Rubin, Eiber and Sullivan, JJ., concur.