PEOPLE v. EUGENE (2006)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered October 14, 2003, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's general motion for a trial order of dismissal was not sufficiently specific to preserve for appellate review his claim that the evidence was legally insufficient to prove his identity as one of the perpetrators (see People v. Elmore, 269 A.D.2d 404, 702 N.Y.S.2d 860;  People v. King, 238 A.D.2d 524, 657 N.Y.S.2d 933).   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 (see People v. Ricone, 288 A.D.2d 402, 733 N.Y.S.2d 229;  People v. Mouchette, 192 A.D.2d 561, 596 N.Y.S.2d 108).   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;  People v. Prahalad, 295 A.D.2d 373, 743 N.Y.S.2d 512).   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;  see also People v. Wells, 18 A.D.3d 482, 483, 794 N.Y.S.2d 125).   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's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review.   The defendant either failed to object to the remarks during the trial or, when an objection was made, failed to request further instructions or move for a mistrial after the court issued a curative instruction (see CPL 470.05[2];  People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276;  People v. Hines, 18 A.D.3d 882, 796 N.Y.S.2d 652).   In any event, most of the challenged remarks constituted fair response to comments made during the defense counsel's summation (see People v. Washington, 17 A.D.3d 384, 791 N.Y.S.2d 841;  People v. Livigni, 288 A.D.2d 323, 732 N.Y.S.2d 875;  People v. Brunson, 284 A.D.2d 406, 726 N.Y.S.2d 281;   People v. Hill, 176 A.D.2d 755, 574 N.Y.S.2d 819).   To the extent that any of the prosecutor's comments were improper, any error was mitigated by the court's curative instructions and charge to the jury (see People v. Joseph, 20 A.D.3d 435, 797 N.Y.S.2d 310;  People v. Williams, 14 A.D.3d 519, 787 N.Y.S.2d 399;  People v. Credle, 12 A.D.3d 456, 783 N.Y.S.2d 850;  People v. Howe, 292 A.D.2d 542, 739 N.Y.S.2d 587), or was not so prejudicial as to warrant reversal (see People v. Washington, supra;  People v. Prescott, 300 A.D.2d 325, 326, 751 N.Y.S.2d 507).

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