PEOPLE v. SALAZAR (2005)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered September 30, 2002, convicting him of assault in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 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 was not against the weight of the evidence (see CPL 470.15 [5] ).

 The defendant contends that the jury's verdict convicting him of assault in the second degree and acquitting him of criminal possession of a weapon in the fourth degree is repugnant.   This contention is unpreserved for appellate review, as counsel failed to raise the issue before the discharge of the jury (see People v. Satloff, 56 N.Y.2d 745, 746, 452 N.Y.S.2d 12, 437 N.E.2d 271;  People v. Samwell, 287 A.D.2d 663, 731 N.Y.S.2d 747).   In any event, the jury's verdict is not repugnant.   Viewing the elements of the crime as charged to the jury (see People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617), the jury could have found that the defendant initially possessed the dangerous instrument without any intent to use it unlawfully (see People v. Anthony, 273 A.D.2d 246, 709 N.Y.S.2d 836;  People v. Holloway, 253 A.D.2d 767, 768, 677 N.Y.S.2d 489;  People v. Smith, 235 A.D.2d 558, 559, 653 N.Y.S.2d 931).