PEOPLE v. HUDSON (2008)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mullen, J.), rendered March 29, 2006, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that certain remarks made by the prosecutor during his opening statement and on summation were improper.   However, inasmuch as defense counsel failed to make specific objections to the challenged remarks, the defendant's present contentions concerning those remarks are unpreserved for appellate review (see CPL 470.05[2];  People v. Young, 118 A.D.2d 745, 500 N.Y.S.2d 78).   In any event, the challenged remarks either were responsive to arguments made by defense counsel, constituted fair comment on the evidence, or otherwise did not deprive the defendant of a fair trial (see People v. Olivo, 23 A.D.3d 584, 806 N.Y.S.2d 594).

The defendant's contentions that the trial court improperly failed to conduct a Ventimiglia hearing (see People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59) to determine the admissibility of certain testimony, and improperly failed to repeat cautionary instructions to the jury concerning note-taking, are also unpreserved for appellate review (see CPL 470.05[2];  People v. Bethea, 34 A.D.3d 489, 490, 824 N.Y.S.2d 128;  People v. Ramos, 306 A.D.2d 295, 760 N.Y.S.2d 331;  People v. Caraballo, 221 A.D.2d 553, 554, 634 N.Y.S.2d 135).   In any event, any error was harmless since there was overwhelming evidence of the defendant's guilt, and no significant probability that any error contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Williams, 50 A.D.3d 709, 854 N.Y.S.2d 542;  People v. Caraballo, 221 A.D.2d at 554, 634 N.Y.S.2d 135).

 The defendant's challenge to the legal sufficiency of the evidence is also unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, 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 it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Lopez, 161 A.D.2d 670, 671, 555 N.Y.S.2d 443, 444).   Moreover, resolution of issues of credibility is primarily a matter to be determined by the trier of fact, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 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, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).