Opinion
March 22, 1993
Appeal from the Supreme Court, Kings County (Rappaport, J.).
Ordered that the judgment is affirmed.
Viewing the evidence adduced at trial 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, 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).
The defendant further contends that the court improperly refused to issue a missing witness charge with regard to Rodney Tedder. We agree. The evidence demonstrates that Tedder was in a position to know about the robbery and that he could have been expected to testify favorably to the People, as an eyewitness to the crime and as the child of another eyewitness. Contrary to the contention of the People, the defendant did not have the initial burden of demonstrating that Tedder's testimony would not have been cumulative (see, People v. Fields, 76 N.Y.2d 761, 763; People v. Vasquez, 76 N.Y.2d 722, 724; People v. Gonzalez, 68 N.Y.2d 424, 428). We do agree with the People, however, that the error was harmless in view of the overwhelming evidence of guilt (see, People v. Fields, supra).
The defendant's remaining contentions are either unpreserved for appellate review or without merit (see, People v. Whalen, 59 N.Y.2d 273, 280; People v. Charleston, 56 N.Y.2d 886, 887). Sullivan, J.P., Balletta, O'Brien and Santucci, JJ., concur.