PEOPLE v. BIGGS (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered November 16, 2005, convicting him of manslaughter in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his convictions of manslaughter in the second degree is 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.   Moreover, resolution of issues of credibility is primarily a matter to be determined by the factfinder, 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 trial court properly admitted into evidence the prior testimony of the defendant's accomplice.   The prosecution established that it exercised due diligence in attempting to locate the witness (see CPL 670.10[1];  People v. Thomas, 219 A.D.2d 549, 549-550, 632 N.Y.S.2d 1;  People v. Tumerman, 133 A.D.2d 714, 715, 519 N.Y.S.2d 880).   Moreover, the admission of the prior testimony did not violate the defendant's right to confrontation as the defendant had a full opportunity to cross-examine the witness at his two prior trials (see Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177).

The defendant was not denied the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).

The defendant's remaining contentions are without merit.