People v. Palmer

Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered September 9, 1993, convicting defendant, after jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, cert denied 469 US 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 NY2d 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 AD2d 441, 441-442, lv denied 80 NY2d 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 NY2d 817), was not misleading. Finally, we perceive no abuse in sentencing discretion. Concur—Sullivan, J. P., Rosenberger, Wallach, Kupferman and Tom, JJ.