PEOPLE v. HAYES (2008)

Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.), rendered November 7, 2003, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The trial court correctly declined to provide the jury with a charge regarding the temporary, innocent, and lawful possession of a weapon, as there was no reasonable view of the evidence that the defendant had a legal excuse for possessing the weapon and that the weapon had not been used in a dangerous manner (see People v. Banks, 76 N.Y.2d 799, 801, 559 N.Y.S.2d 959, 559 N.E.2d 653;  People v. Snyder, 73 N.Y.2d 900, 902, 539 N.Y.S.2d 285, 536 N.E.2d 614;  People v. Williams, 50 N.Y.2d 1043, 1044-1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372;  People v. Caldarola, 45 A.D.3d 600, 600-601, 845 N.Y.S.2d 117;  People v. Medina, 237 A.D.2d 382, 382-383, 655 N.Y.S.2d 430).

 The defendant was not denied the effective assistance of counsel because trial counsel withdrew the defense request for a justification charge.   Considering the record in the light most favorable to the defendant, there was no reasonable view of the evidence supporting such a charge (see People v. Reynoso, 73 N.Y.2d 816, 537 N.Y.S.2d 113, 534 N.E.2d 30;  People v. Harris, 48 A.D.3d 830, 851 N.Y.S.2d 366;  People v. Ojar, 38 A.D.3d 684, 685, 832 N.Y.S.2d 250;  People v. Pichardo, 168 A.D.2d 577, 578, 562 N.Y.S.2d 792;  People v. Douglas, 160 A.D.2d 1015, 554 N.Y.S.2d 727).

 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 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, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   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, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

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 either are without merit or do not warrant reversal.