Opinion
April 18, 1994
Appeal from the Supreme Court, Kings County (Rappaport, J.).
Ordered that the judgment is affirmed.
The trial evidence showed that the defendant and several accomplices smuggled guns into a crowded Brooklyn social club to kill Dennis James, found him and shot him to death, and also shot and killed a young woman and wounded four others in the barrage. Viewing the evidence in the light most favorable to the People (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, neither the familial relationship of one of the People's key witnesses to James nor an accomplice's plea agreement rendered their testimony incredible as a matter of law. Resolution of issues of credibility, as well as the weight to be accorded 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). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The defendant further contends that the verdict acquitting him of intentional murder in the second degree (see, Penal Law § 125.25) and intentional assault in the first degree (see, Penal Law § 120.10) is inconsistent with the conviction on two counts of intentional assault in the second degree (see, Penal Law § 120.05). However, since the defendant failed to bring this issue to the trial court's attention prior to the discharge of the jury, his present claim is unpreserved for appellate review (see, People v Alfaro, 66 N.Y.2d 985). In any event, we find no impropriety in the verdict. The complained-of counts concern different victims and do not contain identical elements (see, People v Tucker, 55 N.Y.2d 1; People v Tankleff, 199 A.D.2d 550; People v McFadden, 194 A.D.2d 566). Even if the evidence is more supportive of a finding of reckless rather than intentional conduct, the verdict may not be set aside simply because one theory is more plausible than another (see, People v Tankleff, supra).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Thompson, J.P., Copertino, Pizzuto and Santucci, JJ., concur.