PEOPLE v. SMITH (2004)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach, J.), rendered March 3, 2003, convicting him of rape in the first degree, sexual abuse in the first degree, and attempted robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the People did not present legally sufficient evidence to prove beyond a reasonable doubt that he committed the crime of attempted robbery in the first degree 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 beyond a reasonable doubt that the defendant committed attempted robbery in the first degree (see Penal Law § 160.15[4];  People v. Baskerville, 60 N.Y.2d 374, 380-381, 469 N.Y.S.2d 646, 457 N.E.2d 752).   Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to 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 defendant's contention that the prosecutor's allegedly improper comments during summation constituted reversible error is unpreserved for appellate review (see CPL 470.05[2];  People v. Tonge, 93 N.Y.2d 838, 688 N.Y.S.2d 88, 710 N.E.2d 653;  People v. Hugennie, 295 A.D.2d 368, 743 N.Y.S.2d 288).   In any event, the comments were responsive to the defense counsel's summation (see People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57;  People v. Miller, 143 A.D.2d 1055, 533 N.Y.S.2d 756).

The defendant's contention that his adjudication as a persistent violent felony offender violated his right to a jury trial is unpreserved for appellate review, and in any event, is without merit (see People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160;  People v. Oliver, 63 N.Y.2d 973, 483 N.Y.S.2d 992, 473 N.E.2d 242;  People v. Horn, 7 A.D.3d 638, 775 N.Y.S.2d 898, lv. denied 3 N.Y.3d 659, 782 N.Y.S.2d 701, 816 N.E.2d 574).