Opinion
December 23, 1985
Appeal from the County Court, Westchester County (Facelle, J.).
Judgment affirmed.
In viewing the evidence in the record in the light most favorable to the People, as we are required to do, we conclude that a rational trier of fact could have found, as the jury did at bar, that the prosecution proved beyond a reasonable doubt that defendant was guilty of burglary in the third degree. Questions of reasonable doubt and credibility are best left to the jury. Based upon the quantity and quality of the evidence in the record, there is no basis to disturb the jury's verdict (see, People v Malizia, 62 N.Y.2d 755, 757, cert. denied ___ US ___, 105 S Ct 327; People v Contes, 60 N.Y.2d 620, 621; People v Bigelow, 106 A.D.2d 448).
Contrary to defendant's contentions, we further find that the trial court properly determined that a witness, Richard Davis, was unavailable due to illness, and that his preliminary hearing testimony was admissible at trial (CPL 670.10, 670.20 Crim. Proc.). The witness' private physician testified at a hearing on this matter that Mr. Davis was then residing in a nursing home and had been admitted there on March 15, 1984 with a diagnosis of a trial fibrillation, congestive heart failure, arteriosclerotic heart disease, amputation of the leg, occlusion of the circulation in the leg and organic brain syndrome. The doctor further stated that in his opinion, he did not think the witness was capable of coming to court because of his mental condition. On cross-examination he stated that "[i]t would present a health threat to have [Davis] go outside the facility". The record also indicates that the trial court properly reviewed the transcript of the witness' testimony, correctly concluding that defendant "was afforded adequate opportunity and scope to examine and cross-examine the witness at that proceeding and was not in any way limited or restricted by the Court, nor by anyone else in * * * cross-examination".
We have reviewed defendant's remaining contentions and find them to be either not properly preserved for appellate review or insufficient to warrant reversal. Lazer, J.P., Bracken, Weinstein and Kunzeman, JJ., concur.