Opinion
2003-328 Q CR.
Decided December 21, 2004.
Appeal by defendant from a judgment of the Criminal Court, Queens County (R. Raciti, J.), rendered February 6, 2003, convicting him, following a nonjury trial, of the crimes of attempted forcible touching (Penal Law §§ 110.00, 130.52) and attempted sexual abuse in the third degree (Penal Law §§ 110.00, 130.55), and imposing sentence.
Judgment of conviction unanimously affirmed.
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
The resolution of issues of credibility, as well as the weight to be accorded the evidence presented, is primarily to be decided by the trier of fact, which had the opportunity to see and hear the witnesses ( see People v. Gaimari, 176 NY 84, 94). The determination of the trier of fact 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). Although defendant pointed to several discrepancies between the complainant's description of the nonconsensual conduct in the Criminal Court complaint and her testimony at trial, it cannot be said that such discrepancies were of such significance as to render her testimony incredible as a matter of law. We are satisfied that the evidence was legally sufficient to establish defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence ( see CPL 470.15).
Furthermore, with respect to defendant's allegation of prejudice due to the People's pre-trial application for a ruling on the admissibility of a prior "bad act," we note that there is no prohibition against a judge conducting and determining the outcome of both a pretrial hearing and the trial itself. The trial judge in a nonjury case, due to his or her "'learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination' based upon appropriate legal criteria, despite awareness of facts which cannot be properly relied upon in making the decision" ( People v. Moreno, 70 NY2d 403, 406). It is presumed that the court considered only legally competent evidence in arriving at its verdict.