Opinion
2002-01908.
Decided May 10, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered February 27, 2002, convicting him of murder in the second degree and assault in the first degree (three counts), upon a jury verdict, and imposing sentence.
Laura R. Johnson, New York, N.Y. (Susan Epstein of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Before: HOWARD MILLER, J.P., THOMAS A. ADAMS, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
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 trier of fact, 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).
Contrary to the defendant's contention, the cumulative evidence presented at the Sirois hearing ( see Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405) and the inferences that logically flowed therefrom were sufficient to support the Supreme Court's determination, under the clear and convincing evidence standard, that the defendant engaged in conduct or acquiesced in the conduct of others on his behalf that caused a witness's unavailability to testify at trial ( see People v. Cotto, 92 N.Y.2d 68; People v. Geraci, 85 N.Y.2d 359, 370; People v. Field, 308 A.D.2d 548, lv denied 1 N.Y.2d 571). Accordingly, the Supreme Court properly allowed the use of the witness's Grand Jury testimony and audiotaped statement as part of the People's direct case.
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contention is not preserved for appellate review, and we decline to reach it in the exercise of our interest of justice jurisdiction.
H. MILLER, J.P., ADAMS, TOWNES and MASTRO, JJ., concur.