People v. Collymore

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered October 24, 1984, convicting him of rape in the first degree (two counts), sodomy in the first degree (two counts), and robbery in the first degree, upon a jury verdict, and [604] 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 testimony. Ordered that the judgment is affirmed. The hearing record establishes that although there was a joint viewing of photographs by the two complainants, the female complainant selected the defendant’s photograph from the array without assistance by the male complainant. Furthermore, the People were able to prove, by clear and convincing evidence, that the female complainant had an independent basis for- her subsequent identifications of the defendant (see, People v Jones, 108 AD2d 824; People v Gaddy, 98 AD2d 729). Viewing the evidence, as we must, in the light most favorable to the People (People v Malizia, 62 NY2d 755, cert denied 469 US 932), the jury could find that the defendant’s guilt was proven beyond a reasonable doubt. The accuracy of the identification and the inconsistencies in the female complainant’s testimony were issues to be resolved by the jury (see, People v Gruttola, 43 NY2d 116; People v Tugwell, 114 AD2d 869). We decline to exercise our discretion to disturb the term of imprisonment imposed by the sentencing court. Niehoff, J. P., Rubin, Lawrence and Sullivan, JJ., concur.