PEOPLE v. WARE (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered March 15, 2004, convicting him of attempted assault in the first degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the defense of justification was disproved beyond a reasonable doubt.   There was legally sufficient evidence to support the conclusion that the defendant was the initial aggressor, the victim was fleeing and unarmed, and the defendant could have retreated to safety without resorting to deadly physical force.   Consequently, the defendant's convictions of attempted assault in the first degree and criminal possession of a weapon in the second degree, offenses to which the defense of justification might have applied, must be sustained.   The defendant's conviction of attempted robbery in the first degree must also be sustained since, contrary to the defendant's contention, the justification defense does not apply to this charge (see People v. Ellison, 175 A.D.2d 846, 573 N.Y.S.2d 202).

 While the defendant contends that the testimony of the prosecution witnesses was incredible, the resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902).   Where, as here, the challenged testimony was not incredible as a matter of law, the jury's determination should be accorded great weight on appeal (see People v. Romero, supra at 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, supra ).

The defendant's contention concerning the trial court's charge on the issue of justification is unpreserved for appellate review, and we decline to review this issue in the exercise of our interest of justice jurisdiction (see People v. Peterkin, 23 A.D.3d 678, 679, 804 N.Y.S.2d 269;  People v. Holmes, 12 A.D.3d 532, 783 N.Y.S.2d 862;  cf. People v. Feuer, 11 A.D.3d 633, 782 N.Y.S.2d 858).