People v. Gibbs

154 A.D.2d 708

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 1989
• Status: Published

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pesce, J.), rendered May 1, 1987, convicting him of robbery in the second degree, grand larceny in the third degree, and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]). Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v Gaimari, 176 NY 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v Garafolo, 44 AD2d 86, 88).

Although the court erred in instructing the jury that no adverse inference should be drawn from the defendant’s failure to testify in the absence of a request by the defendant for such a charge, the error was harmless under the circumstances of this case (see, People v Bradshaw, 154 AD2d 690 [decided herewith]; People v Carlton, 146 AD2d 641; People v Malcolm, 143 AD2d 1049).

The defendant’s remaining contentions are unpreserved for appellate review and do not warrant review in the exercise of our interest of justice jurisdiction. Thompson, J. P., Brown, Kunzeman and Rubin, JJ., concur.