People v. Mayorga

281 A.D.2d 563, 721 N.Y.S.2d 829, 2001 N.Y. App. Div. LEXIS 2585

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 2001
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dunlop, J.), rendered April 6, 1998, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10; People v Mayorga, 273 AD2d 480; People v Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt of the crime of assault in the second degree based on an accomplice theory beyond a reasonable doubt (see, People v Allah, 71 NY2d 830). Moreover, resolution of issues of credibility, as well as the weight to be accorded 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). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, GPL 470.15 [5]).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are unpreserved for appellate review and, in any event, are either without merit or do not require reversal. O’Brien, J. P., Krausman, Florio and Schmidt, JJ., concur.