Opinion
July 9, 1990
Appeal from the County Court, Dutchess County (King, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, we find that his guilt was established beyond a reasonable doubt. The evidence adduced at trial established that the decedent, 3 1/2-year-old Andrew Lamar, Jr., was killed as a result of internal injuries which were inflicted upon him at a time when he was in the defendant's exclusive physical custody. Two expert forensic pathologists, examining different aspects of the medical evidence, opined that the child was injured at approximately 10:00 P.M. on January 10, 1986, by a forceful blow to the abdomen. At this time the child's mother was at work and she had entrusted her son's care to the defendant, who was her live-in boyfriend. Viewing this circumstantial evidence, including the evidence that the child had apparently been previously abused (see, People v. Stanley, 135 A.D.2d 910), in the light most favorable to the People, we conclude that the facts from which the jury could infer the defendant's guilt were inconsistent with his innocence and excluded every other reasonable hypothesis to a moral certainty (see, People v. Contes, 60 N.Y.2d 620; People v. Kennedy, 47 N.Y.2d 196). Moreover, 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), as the testimony of the two medical experts proffered by the People convincingly established that only the defendant could have inflicted the fatal injuries. Although the defense proffered the testimony of its own expert, who presented a contrary opinion, 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; People v. Ludwig, 155 A.D.2d 558). 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).
Finally, the defendant's remaining contention is unpreserved for appellate review (see, CPL 470.05; see also, People v Lipton, 54 N.Y.2d 340; People v. Rodriguez, 137 A.D.2d 565) and in any event, is without merit (see, e.g., People v. Morillo, 156 A.D.2d 479). Bracken, J.P., Kooper, Rubin and Miller, JJ., concur.