People v. Thomas

215 A.D.2d 701, 628 N.Y.S.2d 488, 1995 N.Y. App. Div. LEXIS 5434

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Meyerson, J.), rendered April 22, 1993, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it is legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, resolution of issues of credibility and 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). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (see, CPL 470.15 [5]).

The trial court properly refused to charge criminal trespass in the second degree as a lesser included offense of burglary in the second degree. There was no rational basis for the jury to acquit the defendant of burglary in the second degree and to convict him of criminal trespass in the second degree (see, People v Scarborough, 49 NY2d 364). Mangano, P. J., Sullivan, Thompson and Hart, JJ., concur.