PEOPLE v. WILLIFORD (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered September 9, 2003, convicting him of robbery in the first degree, robbery in the second degree, and grand larceny in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 The trial court did not err in denying the motion to sever the trial of the defendant and his codefendants (see People v. Cardwell, 78 N.Y.2d 996, 575 N.Y.S.2d 267, 580 N.E.2d 753;  People v. Mahboubian, 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 543 N.E.2d 34;  People v. Peisahkman, 29 A.D.3d 352, 814 N.Y.S.2d 609;  People v. Castro, 291 A.D.2d 292, 737 N.Y.S.2d 605).   Contrary to the defendant's assertion, the record does not reveal an irreconcilable conflict between his defense and his codefendants' defenses such that the conflict alone would have led the jury to infer the defendant's guilt (see People v. Hernandez, 260 A.D.2d 399, 400, 688 N.Y.S.2d 185;  cf. People v. Mahboubian, supra ).

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Leon, 19 A.D.3d 509, 797 N.Y.S.2d 525).   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 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 ).

Viewing the totality of the evidence, the law, and the circumstances of this case, we find that the defendant received meaningful representation from his trial counsel (see People v. Caban, 5 N.Y.3d 143, 153, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584).

The defendant's claim that his sentence was based on improper criteria is unpreserved for appellate review and, in any event, is without merit.   Further, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions raised in Point I of his brief regarding the hearing court's determination, and in Point IV of his brief regarding the hearing court's conduct, are unpreserved for appellate review and, in any event, are without merit.