People v. Wright

158 A.D.2d 567, 551 N.Y.S.2d 841, 1990 N.Y. App. Div. LEXIS 1746

Opinion

Contrary to the defendant’s contentions, the evidence when viewed in a light most favorable to the prosecution was legally sufficient to establish the defendant’s guilt of robbery in the second degree under the first count of the indictment (see, People v Contes, 60 NY2d 620). It is well settled that 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 under the first count of the indictment was not against the weight of the evidence (see, CPL 470.15 [5]).

The proof adduced at trial, however, was insufficient to establish that the complainant suffered substantial pain or physical impairment within the meaning of Penal Law § 10.00 (9) and § 160.10 (2) (a) with regard to the conviction of robbery in the second degree under the second count of the indictment. Since there is sufficient evidence to support a conviction of the lesser included offense of robbery in the third degree (see, Penal Law § 160.05), the judgment is modified accordingly (see, People v Melvin, 149 AD2d 536). Mollen, P. J., Eiber, Sullivan and Rosenblatt, JJ., concur.