PEOPLE v. ROWE (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Roman, J.), rendered February 9, 1998, convicting him of burglary in the second degree and petit larceny, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the evidence against him is legally insufficient to support his conviction is unpreserved for appellate review (see, CPL 470.05[2];  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 is legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 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, 88, 353 N.Y.S.2d 500).   Upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (see, CPL 470.15[5] ).

 The trial court properly struck from the record defense counsel's comment on the People's failure to call two witnesses.   That comment was in contravention of an agreement reached at a sidebar conference permitting the defense counsel to interview the two witnesses by telephone and then decide whether “to have them brought in”.

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit (see, People v. Knight, 80 N.Y.2d 845, 847, 587 N.Y.S.2d 588, 600 N.E.2d 219).

MEMORANDUM BY THE COURT.