Majority
p. 839The People of the State of New York, Respondent, v Derek Smith, Appellant.
p. 840
The defendant contends that the testimony of an eyewitness to the crime was not credible and that therefore his guilt was not proven beyond a reasonable doubt. We reject this contention. Credibility is a matter to be determined by the trier of the facts (People v Malizia, 62 NY2d 755 , 757, cert denied 469 US 932 ; People v Parks, 41 NY2d 36 , 47). Our review of the record leads us to conclude that the evidence adduced at the trial was sufficient in quantity and quality to support the verdict (see, People v Malizia, supra; cf. People v Restrepo, 93 AD2d 825 ; People v Fillion, 66 AD2d 932 ).
We reject the defendant’s contention that two instances of prosecutorial misconduct during the summation denied him a fair trial (see, People v Boute, 111 AD2d 398 ). Mangano, J. P., Weinstein, Lawrence and Eiber, JJ., concur.
Cases cited
- People v. Malizia 62 NY2d 755 at 757 p. 840
- People v. Fillion 66 AD2d 932 p. 840