PEOPLE v. MARTIN (2007)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered March 15, 2006, convicting him of robbery in the second degree, criminal solicitation in the second degree, tampering with a witness in the third degree, and intimidating a victim or witness in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

 The defendant's contention that the evidence was legally insufficient to establish his guilt of criminal solicitation in the second degree, tampering with a witness in the third degree, and intimidating a victim or witness in the third degree is unpreserved for appellate review, since he failed to address any specific legal errors as a basis for dismissal of those counts in the trial court (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   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 on these counts as well as on the count charging robbery in the second degree.   Moreover, resolution of issues of credibility is primarily 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, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Patten, 43 A.D.3d 964, 841 N.Y.S.2d 359;  People v. Gonzalez, 3 A.D.3d 579, 770 N.Y.S.2d 661).

 As the People correctly concede, however, a new trial is required because the Supreme Court did not obtain written consent signed by the defendant in open court in the presence of the court, to replace two regular jurors with two alternate jurors after the jury began its deliberations (see CPL 270.35[1];  People v. Page, 88 N.Y.2d 1, 3, 643 N.Y.S.2d 1, 665 N.E.2d 1041;  People v. Whitley, 24 A.D.3d 473, 474, 806 N.Y.S.2d 222).   Oral consent will not suffice (People v. Page, 88 N.Y.2d 1, 3, 643 N.Y.S.2d 1, 665 N.E.2d 1041);  the consent must be in writing, in open court, and made by the defendant personally in the presence of the court (see CPL 270.35 [1] ).

In view of this disposition it is unnecessary to reach the defendant's remaining contentions.