You are here: / / ALTHOUGH THE VICTIM, AFTER IDENTIFYING DEFENDANT IN A PHOTO ARRAY, ASKED...
, ,

ALTHOUGH THE VICTIM, AFTER IDENTIFYING DEFENDANT IN A PHOTO ARRAY, ASKED TO SEE A SECOND PHOTO ARRAY, HER IDENTIFICATION OF THE DEFENDANT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS A STRONG DISSENT (FOURTH DEPT). ​

The Fourth Department, affirming defendant’s conviction, in a full-fledged opinion by Justice Greenwood, over a strong dissent, determined the one-witness identification of the defendant was not against the weight of the evidence. After identifying the defendant in a photo array the victim asked to see another photo array. In the second array she again picked out the defendant, but apparently she didn’t think she was identifying the same person. But she had in fact identified the same person from an older photograph:

In determining whether a verdict is against the weight of the evidence, we must first determine whether, “based on all the credible evidence[,] a different finding would not have been unreasonable” … . If so, “then [we] must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” … . Weight of the evidence review is not an “open invitation” for an appellate court to substitute its judgment for that of the jury … . Rather, in reviewing the evidence, we “must give ‘[g]reat deference’ to the jury’s verdict . . . precisely because ‘[t]he memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by those who see and hear than by those who simply read the printed narrative’ ” … . Stated another way, it is the “fact-finder[ ]” that has the “opportunity to view the witnesses, hear the testimony and observe demeanor” … , and “those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record” … .

Contrary to the conclusion of the dissent, the facts of this case do not warrant the substitution of our credibility determinations for those made by the jury …  We conclude that the second victim’s identification of defendant was not “incredible and unbelievable, that is, impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory” … . The issues of her identification of defendant and her credibility “were properly considered by the jury and there is no basis for disturbing its determinations” … . We note that the second victim “never wavered in her testimony regarding the events or her identification of defendant” … .People v Clark, 2024 NY Slip Op 03586, Fourth Dept 7-3-24

Practice Point: The criteria for a “weight of the evidence” appellate review is clearly illustrated here.

 

You might also like
Battery Cause of Action Based Upon the Complete Absence of Consent or Fraudulently Induced Consent Is Not Duplicative of a Dental Malpractice Allegation—Criteria Explained/Questions of Fact Raised Re: the Deceptive Business Practices Cause of Action—Some of the Criteria Explained
Defense Counsel’s Failure to Object to Considerable Testimony About Prior Consistent Statements Made by the Victim Concerning Alleged Sexual Abuse Did Not Constitute Ineffective Assistance of Counsel
PLAINTIFF’S HOMEOWNER’S POLICY EXCLUDED COVERAGE FOR INTENTIONAL ACTS; THEREFORE THE INSURER WAS NOT OBLIGATED TO DEFEND PLAINTIFF IN A SUIT STEMMING FROM AN ALLEGED ASSAULT BY PLAINTIFF ON HIS NEIGHBOR (FOURTH DEPT).
RECORDS OF PLAINTIFF’S STAY AT A SHELTER FOR VICTIMS OF DOMESTIC VIOLENCE ARE DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION AS DEEMED APPROPRIATE BY THE TRIAL COURT UPON REVIEW, DEFENDANTS ENTITLED TO PRIVILEGE LOG.
Claimant’s Inculpatory Statement Demonstrated to Be Product of Police Misconduct
Neglect Finding Cannot Be Based Upon Theoretical Future Harm
Supreme Court Properly Annulled New York Division of Human Rights’ Determination there Was No Probable Cause to Believe the School District Discriminated against Petitioner When It Refused to Hire Her Because of Her Anticipated Absence (Due to Pregnancy)
THE MANAGER OF PLAINTIFF BAR PUSHED A MAN DOWN A SET OF STAIRS CAUSING FATAL INJURIES; THE ASSAULT AND BATTERY EXCLUSION IN DEFENDANT’S INSURANCE POLICY APPLIED AND THE INSURER WAS NOT OBLIGATED TO DEFEND THE BAR (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

HACKED WEB CAM VIDEO EVIDENCE ALLEGED TO DEPICT ABUSE OF A CHILD IN MOTHER’S... CIVIL CONTEMPT AIMS TO COMPENSATE THE OTHER PARTY FOR ANY LOSS ASSOCIATED WITH...