PEOPLE v. GARDNER (2004)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered May 15, 2002, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the evidence at trial was legally insufficient to establish his guilt is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), 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 questions to be determined by the trier of fact, which saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   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 A.D.2d 86, 353 N.Y.S.2d 500).   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] ).

 The defendant's claim that the judgment of conviction should be reversed based upon the late disclosure of Brady material (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, supra;  People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4).   In any event, the material at issue was turned over to the defendant before the opening statements and in sufficient time for him to use it in a meaningful fashion during the cross-examination of the People's witnesses or as evidence during his case (see People v. Cortijo, 70 N.Y.2d 868, 523 N.Y.S.2d 463, 517 N.E.2d 1349;  People v. Rodriguez, 281 A.D.2d 644, 722 N.Y.S.2d 257;  People v. Harvall, 289 A.D.2d 340, 734 N.Y.S.2d 563).   There is no indication that a reasonable possibility exists that earlier disclosure of the material might have led to a different outcome (see People v. Vilardi, 76 N.Y.2d 67, 556 N.Y.S.2d 518, 555 N.E.2d 915;  People v. Rodriguez, supra;  People v. Harvall, supra ).