People v. Brown

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (LaTorella, J.), rendered September 23, 1997, convicting him of criminal sale of a controlled substance in the third degree, after a nonjury trial, and imposing sentence.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620 ), we find that it is legally sufficient to support a finding that the People disproved the defense of agency and established the defendant’s guilt beyond a reasonable doubt (see, People v Ortiz, 76 NY2d 446 , 449; People v Lam Lek Chong, 45 NY2d 64 , 75, cert denied 439 US 935 ; People v Scott, 134 AD2d 379 , 380). Moreover, 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 finder of fact (see, People v Gaimari, 176 NY 84 , 94). 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 , 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, GPL 470.15 [5]).

The defendant contends that the trial court erred in failing to grant his request for a missing witness inference (see, People v Kitching, 78 NY2d 532 ; People v Gonzalez, 68 NY2d 424 ). That contention, however, is unpreserved for appellate review (see, GPL 470.05 [2]). In any event, any error was harmless in light of the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230 ). O’Brien, J. P., Florio, H. Miller and Smith, JJ., concur.