People v. Smith — 248 A.D.2d 736

Majority

p. 736

The People of the State of New York, Respondent, v Gregory Scott Smith, Appellant.

[670 NYS2d 336]

—Appeal by the defendant from a judgment of the County Court, Westchester County (Angiolillo, J.), rendered August 7, 1995, convicting him of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the evidence is not legally sufficient to establish his use of force beyond a reasonable doubt is unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245 ). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620 ), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily

p. 737

questions to be determined by the trier of fact, who saw and heard the witnesses (see, People v Gaimari, 176 NY 84 , 94). Its determination should not be disturbed unless clearly unsupported by the record (see, People v Garafolo, 44 AD2d 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 [5]).

Mangano, P. J., Miller, Ritter and Thompson, JJ., concur.

Cases cited

People v. Udzinski 146 AD2d 245 N.Y. App. Div. 1989-04-17 p. 736
People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 736
People v. Garafolo 44 AD2d 86 N.Y. App. Div. 1974-03-25 at 88 p. 737