Opinion
March 6, 1995
Appeal from the Supreme Court, Kings County (Goldstein, J.).
Ordered that the judgment and order are affirmed.
The defendant's contention that the evidence adduced at trial was legally insufficient to establish that he was guilty of murder in the second degree (see, Penal Law § 125.25) is unpreserved for appellate review (see, CPL 470.05; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the People we find that it was legally sufficient to establish the defendant's guilt of depraved indifference murder beyond a reasonable doubt (see, e.g., People v. Brisbane, 203 A.D.2d 89). Moreover, while the defendant presented a viable alibi defense, 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; see, People v. Bleakley, 69 N.Y.2d 490).
Contrary to the defendant's contentions, the court properly denied, without a hearing, the defendant's motion pursuant to CPL 440.10 to vacate his judgment of conviction based on newly discovered evidence, inasmuch as, among other things, he failed to submit adequate proof that the alleged newly discovered evidence could not have been produced by the defense at the trial with due diligence (see, CPL 440.10 [g]; 440.30 [1], [6]; see, People v. Salemi, 309 N.Y. 208, 216, cert denied 350 U.S. 950; People v. Priori, 164 N.Y. 459, 472; People v Gurley, 197 A.D.2d 534, 535).
The defendant's remaining contentions, including that with respect to the propriety of the sentence imposed, are either unpreserved for appellate review or without merit. Bracken, J.P., Pizzuto, Altman and Krausman, JJ., concur.