Opinion
April 13, 1992
Appeal from the County Court, Nassau County (Harrington, J.).
Ordered that the judgment is affirmed.
The defendant's generalized motion to dismiss was insufficient to preserve his claim that the proof of identification was legally insufficient to establish his guilt beyond a reasonable doubt (People v Bynum, 70 N.Y.2d 858). In any event, viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 N.Y.2d 620), we find that the identification testimony of the complainant, who recognized the defendant from having seen him on 15 to 20 previous occasions at the gas station where the robbery occurred, as well as the testimony of an eyewitness, was legally sufficient to establish the defendant's guilt. Furthermore, the minor inconsistency in the height of the defendant given in the identification testimony of the complainant, on the one hand, and the defendant's appearance, on the other hand, did not render the identification testimony incredible as a matter of law (People v Harvey, 175 A.D.2d 138).
The 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 (People v Gaimari, 176 N.Y. 84, 94). The jury's determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (People v Garafolo, 44 A.D.2d 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, CPL 470.15).
The defendant also contends that the court improperly denied his request to submit the crime of robbery in the third degree as a lesser included offense of robbery in the first degree. We disagree. On this record there is no reasonable view of the evidence that would support a finding that the defendant committed the lesser offense but not the greater (People v Cromwell, 163 A.D.2d 410; People v Gray, 144 A.D.2d 483; People v Neal, 118 A.D.2d 815). Thompson, J.P., Harwood, Balletta and Copertino, JJ., concur.