Opinion
May 13, 1996
Appeal from the Family Court, Richmond County (Meyer, J.).
Ordered that the order of disposition is affirmed, without costs or disbursements.
In this case, the presentment agency sought to prove that the complainant was intentionally assaulted by the appellant with a dangerous instrument, namely, "an object with a metal end", as alleged in the petition and counts charged ( see, Penal Law § 120.10; § 10.00 [13]). The testimony during the presenting agency's case was consistent with this theory, as the complainant testified that someone handed the appellant an object which resembled the end of a tape dispenser, and the appellant struck the complainant in the face with that object.
During the defense case, the appellant and her witnesses denied that the appellant received and used a dangerous instrument during the fight. Instead, they asserted that the appellant was wearing a finger ring with a protruding metal prong as she fought with the complainant. The appellant conceded that she had removed all of her other jewelry in anticipation of fighting with the complainant. The court concluded that the appellant was wearing a ring with a protruding metal prong.
The appellant's decision to wear a finger ring with a protruding metal prong when she intentionally hit the complainant in the face during the fight was consistent with the allegation that the complainant was intentionally assaulted and injured by the appellant who used an "object with a metal end" to cause the injury ( see, e.g., Penal Law § 120.10; § 10.00 [13]; People v. Spann, 56 N.Y.2d 469, 473-474; Matter of Jason J., 187 A.D.2d 652). Accordingly, neither the Family Court nor the presentment agency constructively amended the counts charged in the petition.
Viewing the evidence in the light most favorable to the presentment agency ( cf., People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to support the fact-finding order. 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 trier of fact, which saw and heard the witnesses ( cf., 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, Matter of Deejai S., 220 A.D.2d 514; cf., People v Garafolo, 44 A.D.2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the finding of guilt is not against the weight of the evidence ( cf., CPL 470.15). Ritter, J.P., Thompson, Hart and McGinity, JJ., concur.