Opinion
Argued May 24, 1999
July 19, 1999
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered March 13, 1997, convicting him of robbery in the first degree, attempted assault in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Jojo Annobil of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Victor Barall, Valerie A. DePalma, and Gwen M. Schoenfeld of counsel), for respondent.
DAVID S. RITTER, J.P., WILLIAM C. THOMPSON, MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant has not preserved for appellate review his contention that the identification testimony was legally insufficient to establish his guilt beyond a reasonable doubt ( see, CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245, 250). 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. 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 of guilt is not against the weight of the evidence ( see, CPL 470.15).
The trial court properly charged attempted assault in the second degree as a lesser-included offense of attempted murder in the second degree, because a reasonable view of the evidence supported the conclusion that the defendant committed the lesser offense, but did not commit the greater offense ( see, CPL 300.50; People v. Butler, 84 N.Y.2d 627; People v. Cabassa, 79 N.Y.2d 722, cert denied 506 U.S. 1011; People v. Glover, 57 N.Y.2d 61; People v. Youmans, 251 A.D.2d 436).
Moreover, the sentence was neither excessive nor illegal ( see, Penal Law § 70.25; People v. Moten, 225 A.D.2d 635; People v. Nelson, 179 A.D.2d 784; People v. Cahill, 167 A.D.2d 411; People v. Suitte, 90 A.D.2d 80).