PEOPLE v. CINTRON (2004)

Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.), rendered June 11, 2002, convicting him of sodomy in the first degree, sodomy in the third degree, sexual abuse in the first degree, and endangering the welfare of a child, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the People did not present legally sufficient evidence that he committed sodomy 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 that the defendant committed sodomy in the first degree (see People v. Rivera, 174 A.D.2d 581, 570 N.Y.S.2d 687).   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, 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] ).

We reject the defendant's contention that the sentence imposed on the sodomy in the first degree conviction was illegal.   The trial court's comments at sentencing “ ‘merely reflect the fact that the court was taking into consideration the nature of the crime, a legitimate factor in determining an appropriate sentence’ ” (People v. Anderson, 287 A.D.2d 574, 731 N.Y.S.2d 495, quoting People v. James, 216 A.D.2d 489, 628 N.Y.S.2d 548).   Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).