People v. Smith — 305 A.D.2d 431

Majority

p. 431

The People of the State of New York, Respondent, v Jamie Smith, Also Known as Mark Fraser, Appellant.

[758 NYS2d 518]

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered June 27, 2001, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. Justice Townes has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1 [c]).

Ordered that the judgment is modified, on the law, by vacating the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

p. 432

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 [1903]). 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 [1974]). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt of criminal possession of a controlled substance in the third degree was not against the weight of the evidence (see CPL 470.15 [5]; People v Miller, 282 AD2d 550 , 551 [2001]).

However, as the People correctly concede, the defendant’s conviction of criminal possession of a controlled substance in the seventh degree must be vacated because that count is a lesser-included offense of criminal possession of a controlled substance in the third degree.

The defendant’s remaining contentions are without merit. Ritter, J.P., Feuerstein, Luciano and Townes, JJ., concur.

Cases cited

People v. Garafolo 44 AD2d 86 N.Y. App. Div. 1974-03-25 at 88 p. 432