People v. De Maio

•— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered October 11, 1979, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Judgment affirmed. The defendant challenges his conviction upon the ground that a finding of felony murder could not be made as he was not in immediate flight from an attempted or consummated robbery but was running away from the unexecuted “criminal enterprise”. He also argues that the testimony given by the People’s principal witness as to defendant’s inculpatory admissions, was incredible and hence could not suffice to support a conviction. Defendant errs. The issue of immediate flight is one for the jury unless the record “compels the inference” that the defendant was not so engaged in fleeing the underlying crime (People v Gladman, 41 NY2d 123, 129). The court properly charged the jury in that regard. It is beyond question that the issue of credibility also is one for the jury (People v Lee, 308 NY 302). Defendant *644cannot successfully urge, on the record in this case, that incredibility was established as a matter of law so as to negate the jury’s function. The defendant’s remaining contentions likewise lack merit. Damiani, J. P., Mangano, Gibbons and Gulotta, JJ., concur.