Opinion
September 11, 1995
Appeal from the Supreme Court, Kings County (Vaughan, J.).
Ordered that the judgment is affirmed.
The defendant's contention that attempted robbery in the first degree under Penal Law §§ 110.00 and 160.15 (4) is a non-existent crime is without merit (see, People v Hope, 128 A.D.2d 638), and the case of People v Miller ( 201 A.D.2d 109), involving Penal Law §§ 110.00 and 160.15 (1), is inapplicable.
The defendant failed to preserve for appellate review his contentions that there was insufficient evidence of his identity, that the testimony of the People's witnesses was tailored, and that the evidence only demonstrated his mere presence at the scene of the crime (see, CPL 470.05; People v Bynum, 70 N.Y.2d 858, 859; People v McGee, 204 A.D.2d 353; People v Grogan, 192 A.D.2d 719; People v White, 192 A.D.2d 736).
In any event, viewing the evidence adduced at the trial in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of attempted robbery in the first degree (see, Penal Law § 20.00, 110.00 Penal, 160.15 Penal [4]), beyond a reasonable doubt. The defendant's intent to forcibly steal a jeep from the complainant could be inferred from his conduct and the surrounding circumstances (see, People v Bracey, 41 N.Y.2d 296, 301; People v Hope, 128 A.D.2d 638, supra; see also, People v McGee, 204 A.D.2d 353, supra; People v Jackson, 180 A.D.2d 756). The defendant and his accomplice walked back and forth near the complainant as she used a public telephone. The defendant's accomplice walked up to the complainant and displayed a gun as the defendant walked to and entered the passenger side of the jeep. The defendant's accomplice then entered and tried to start the jeep as the defendant sat in the passenger seat. The defendant and his accomplice were caught by police officers when they attempted to flee from the jeep, and the gun recovered from the defendant's accomplice was fully loaded and operable (see, People v Hope, 128 A.D.2d 638, 639, supra).
Moreover, 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 N.Y. 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 A.D.2d 86, 88). 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).
The defendant's sentence is neither harsh nor excessive (see, People v Suitte, 90 A.D.2d 80). Balletta, J.P., Copertino, Pizzuto and Krausman, JJ., concur.