Opinion
April 15, 1996
Appeal from the Supreme Court, Queens County (Golia, J.).
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of the effective assistance of counsel is without merit. The failure to make a particular pretrial motion does not, by itself, establish ineffective assistance of trial counsel ( see, People v. Wells, 187 A.D.2d 745). To prevail on a claim of ineffective assistance of counsel, it is incumbent upon the defendant to demonstrate the absence of strategic or legitimate explanations for counsel's failure to request a particular hearing ( see, People v. Rivera, 71 N.Y.2d 705, 709; see also, People v. Wells, supra). Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment in not pursuing a hearing ( see, People v. Rivera, supra, at 709; People v. Wells, supra, at 746; see also, People v. Sullivan, 153 A.D.2d 223, 231).
In this case, the defendant's trial counsel acted in a competent manner and exercised professional judgment in not pursuing a certain strategy or hearing ( see, People v. Rivera, supra, at 709; People v. Wells, supra, at 746; People v Sullivan, supra, at 231). The defense counsel effectively cross-examined the People's witnesses, and delivered opening and closing arguments which focused on discrepancies in the identification of the defendant and upon his theory of the case. Taken as a whole, the defendant was provided with meaningful representation ( see, People v. Ortiz, 174 A.D.2d 763; People v Campbell, 162 A.D.2d 606).
The defendant also contends that the People failed to prove his guilt beyond a reasonable doubt. The defendant's challenge to the legal sufficiency of the evidence was not preserved for appellate review ( see, CPL 470.05). In any event, viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt ( see, People v. Duuvon, 77 N.Y.2d 541). Moreover, 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 ( 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 was not against the weight of the evidence ( see, CPL 470.15).
Further, the defendant's sentence was not excessive ( see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit. Miller, J.P., O'Brien, Copertino and Pizzuto, JJ., concur.