People v. Polite

300 A.D.2d 681, 751 N.Y.S.2d 780

Opinion

—Appeal by the defendant from a judgment of the County Court, Suffolk County (Weissman, J.), rendered May 22, 1998, convicting him of attempted robbery in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Since the defendant could have committed the crime of attempted robbery in the first degree without, by the same conduct, committing theft of services, the County Court properly denied his request to charge theft of services as a lesser-included offense of attempted robbery in the first degree (see People v Butler, 84 NY2d 627; People v Shortley, 269 AD2d 254).

Contrary to the defendant’s contention, viewing the evidence in the light most favorable to the defendant, we find that it was legally sufficient to establish his guilt of the crime of attempted robbery in the first degree beyond a reasonable doubt (see People v Contes, 60 NY2d 620; People v Bracey, 41 NY2d 296). Moreover, 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). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v Glaspie, 179 AD2d 822, 825; People v Garafolo, 44 AD2d 86). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Smith, J.P., Gold-stein, Friedmann and McGinity, JJ., concur.