Opinion
May 13, 1996
Appeal from the Supreme Court, Westchester County (Colabella, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction for assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the People ( see, People v. Contes, 60 N.Y.2d 620; People v. Harris, 215 A.D.2d 586), the evidence adduced at trial was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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 finder of fact, which saw and heard the witnesses ( see, People v. Gaimari, 176 N.Y. 84). 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). 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).
The third count of the indictment charging the defendant with assault in the second degree ( see, Penal Law § 120.05) was an inclusory concurrent count of robbery in the second degree as charged in the second count of the indictment ( see, Penal Law § 160.10 [a]) ( see, People v. Rogers, 139 A.D.2d 782). Therefore, that count must be dismissed (see, People v. Rogers, supra). Thompson, J.P., Hart, Goldstein and McGinity, JJ., concur.