Opinion
2004-475 OR CR.
Decided December 19, 2005.
Appeal from a judgment of the Justice Court of the Town of Montgomery, Orange County (Frederick Gorss, J.), rendered January 13, 2004. The judgment convicted defendant, after a nonjury trial, of driving while ability impaired.
Judgment of conviction unanimously affirmed.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
Defendant's contention that the evidence adduced at trial was legally insufficient to establish his guilt of driving while ability impaired beyond a reasonable doubt is unpreserved for appellate review ( see CPL 470.05; People v. Gray, 86 NY2d 10; People v. Udzinski, 146 AD2d 245). In any event, viewing the evidence in a light most favorable to the People ( see People v. Contes, 60 NY2d 620), we find it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Moreover, resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the lower court, which had the opportunity to see and hear the witnesses ( see People v. Gaimari, 176 NY 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 AD2d 86). 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). We are also of the opinion that the sentence imposed upon defendant's conviction of driving while ability impaired (Vehicle and Traffic Law § 1192) was neither harsh nor excessive ( see People v. Suitte, 90 AD2d 80). It is well settled that where a sentence is within the permissible statutory guidelines, it will not be disturbed unless there is a clear showing that the sentencing court abused its discretion or that extraordinary circumstances exist which require a modification of the sentence ( see People v. Dolphy, 257 AD2d 681; People v. Parson, 209 AD2d 882). Accordingly, the judgment of conviction should be affirmed.