PEOPLE v. BORDEN (2004)

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered April 15, 2002, convicting him of assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the evidence was legally insufficient to establish that he possessed a weapon or that he intended to cause serious physical injury to the victim 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, 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 CPL 470.15[5] ).

 The trial court properly refused to charge the jury on reckless endangerment in the first degree and assault in the second degree as lesser-included offenses of the charge of assault in the first degree.   Reckless endangerment in the first degree (see Penal Law § 120.25) is not a lesser-included offense of assault in the first degree (see Penal Law § 120.10 [1];  People v. Moloi, 135 A.D.2d 576, 577, 521 N.Y.S.2d 794;  cf. People v. Gutierrez, 105 A.D.2d 754, 755, 481 N.Y.S.2d 405).   Moreover, the defendant failed to show that a reasonable view of the evidence would support a finding that he committed the crime of assault in the second degree, but not assault in the first degree (see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370;  People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376).

The sentence imposed was neither harsh nor excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).