PEOPLE v. HAYES (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered May 15, 2003, convicting him of assault in the first degree, assault in the second 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, 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.   Resolution of issues of credibility is primarily a matter to be determined by the jury, 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).   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 Supreme Court providently exercised its discretion in limiting the defendant's cross-examination of a witness concerning potential third-party culpability.   The defense counsel's offer of proof concerning that other person's purported participation was speculative, and the evidence he sought to elicit was “too ․ conjectural to have any legitimate influence in determining the fact in issue” (People v. Martinez, 177 A.D.2d 600, 601, 575 N.Y.S.2d 938;  see People v. McGlothin, 6 A.D.3d 462, 463, 773 N.Y.S.2d 883).

 The defendant failed to preserve for appellate review his claim of prosecutorial misconduct (see People v. Balls, 69 N.Y.2d 641, 511 N.Y.S.2d 586, 503 N.E.2d 1017).   In any event, there was no prosecutorial misconduct (see People v. Gray, 284 A.D.2d 664, 665, 728 N.Y.S.2d 513;  cf. People v. Hill, 5 N.Y.3d 772, 773, 801 N.Y.S.2d 794, 835 N.E.2d 654). Moreover, to the extent that the defendant's claim of ineffective assistance of counsel involves matter dehors the record, it may not be reviewed on direct appeal (see People v. Aguirre, 304 A.D.2d 771, 757 N.Y.S.2d 776).   To the extent that the defendant's claim of ineffective assistance of counsel can be reviewed, the defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Villacreses, 12 A.D.3d 624, 626, 785 N.Y.S.2d 103).