PEOPLE v. SMITH (2005)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered April 28, 2003, convicting him of criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant failed to preserve for appellate review his contention that the evidence was legally insufficient to establish his guilt of criminal possession of a weapon in the fourth degree beyond a reasonable doubt (see People v. Lambert, 272 A.D.2d 413, 709 N.Y.S.2d 189).   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 that the defendant possessed a broken bottle with an intent to use it unlawfully against another (see People v. Sullivan, 300 A.D.2d 689, 691, 752 N.Y.S.2d 733).   Although the jury found that the defendant was justified in striking the victim with the bottle, that conclusion did not mandate a finding that the defendant lacked the intent to use the bottle unlawfully at a time when it was not needed to defend himself (see People v. Pons, 68 N.Y.2d 264, 267, 508 N.Y.S.2d 403, 501 N.E.2d 11).

 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, 88, 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 People v. Silva, 306 A.D.2d 424, 760 N.Y.S.2d 876).