Opinion
2004-361 NCR.
Decided March 1, 2006.
Appeal from a judgment of the District Court of Nassau County, First District (Edward Maron, J.), rendered March 8, 2004. The judgment convicted defendant, upon a jury verdict, of petit larceny.
Judgment of conviction affirmed.
PRESENT:: RUDOLPH, P.J., McCABE and LIPPMAN, JJ
Defendant was charged with petit larceny (Penal Law § 155.25) in that, while acting in concert with another person, defendant allegedly stole bags of shrimp from a supermarket.
While defendant asserts numerous instances of prosecutorial misconduct, most of said alleged errors are unpreserved for appellate review ( see CPLR 470.05 [2]). In any event, to the extent that the allegations of prosecutorial misconduct, preserved or unpreserved, constituted error, considered collectively, they were not of such a magnitude as to deny defendant a fair trial, and we find that there is no reasonable possibility that they contributed to defendant's conviction in light of the overwhelming evidence of defendant's guilt ( see e.g. People v. Crimmins, 36 NY2d 230). Moreover, contrary to defendant's contention, the record as a whole establishes that defense counsel's representation was effective and meaningful ( see e.g. People v. Baldi, 54 NY2d 137, 146; People v. Turck, 305 AD2d 1072). Viewing the evidence in a light most favorable to the People ( see People v. Contes, 60 NY2d 620), we find that the evidence adduced at trial was legally sufficient to establish defendant's guilt beyond a reasonable doubt. It is well settled that the 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 NY 84, 94). Since the jury's determination is supported by the record herein, it will not be disturbed on appeal ( see People v. Garafolo, 44 AD2d 86, 88). We are satisfied that the verdict of guilt is not against the weight of the evidence ( see CPL 470.15; People v. Bleakley, 69 NY2d 490, 495).
Finally, we find that the trial judge properly refused to recuse himself and order a mistrial since none of the statutory grounds mandating recusal pursuant to Judiciary Law § 14 are applicable herein. The trial judge is the sole arbiter of whether recusal is warranted ( see People ex rel. Smulczeski v. Smulczeski, 18 AD3d 785), and "this discretionary decision is within the personal conscience of the court" ( People v. Moreno, 70 NY2d 403, 405).
Defendant's remaining contentions are either unpreserved for appellate review or have no merit.
Rudolph, P.J., McCabe and Lippman, JJ., concur.