PEOPLE v. GARCIA (2004)

Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik, J., and Kelly, J., at trial, Kelly, J., at sentence), rendered August 1, 2002, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant failed to preserve for appellate review his contention that the evidence was legally insufficient to establish his guilt of the crime of murder in the second degree beyond a reasonable doubt (see People v. Lambert, 272 A.D.2d 413, 709 N.Y.S.2d 189).   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.   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 trier of fact, 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 was not against the weight of the evidence (see CPL 470.15[5];  People v. Seabrooks, 289 A.D.2d 515, 735 N.Y.S.2d 590).

 Further, the jury determination that the defendant failed to prove by a preponderance of the evidence that he was acting “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” when he stabbed and killed the victim was not against the weight of the evidence (Penal Law § 125.25[1][a];  see Penal Law § 125.20[2];  People v. Roche, 98 N.Y.2d 70, 745 N.Y.S.2d 775, 772 N.E.2d 1133;  People v. George, 7 A.D.3d 810, 776 N.Y.S.2d 883, lv. denied 3 N.Y.3d 674, 784 N.Y.S.2d 13, 817 N.E.2d 831). The circumstances surrounding the commission of the crime were not indicative of a loss of self-control or similar mental infirmity (see People v. Roche, supra;  People v. Palacios, 302 A.D.2d 540, 755 N.Y.S.2d 268).

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