PEOPLE v. BELL

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Wayne BELL, appellant.

Decided: May 31, 2005

HOWARD MILLER, J.P., REINALDO E. RIVERA, ROBERT A. SPOLZINO, and PETER B. SKELOS, JJ. Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Vered Adoni of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered September 9, 2003, convicting him of robbery in the second degree and criminal possession of stolen property in the fourth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Grosso, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the People failed to present legally sufficient evidence to prove that he committed robbery in the second degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Boyle, 289 A.D.2d 251, 734 N.Y.S.2d 480).   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 that the defendant committed robbery in the second degree when he intentionally aided others in the commission of a robbery (see Penal Law §§ 20.00;  160.10[1];  People v. Carr-El, 287 A.D.2d 731, 732 N.Y.S.2d 256, affd. 99 N.Y.2d 546, 754 N.Y.S.2d 198, 784 N.E.2d 71;  People v. Wooten, 214 A.D.2d 596, 625 N.Y.S.2d 63).   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, 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, 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 factual findings and credibility determinations of a hearing court are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record.   There is nothing in the record to support the defendant's contention that the testimony of the arresting police officer at the suppression hearing was incredible” (People v. Parker, 306 A.D.2d 543, 761 N.Y.S.2d 850 [citations omitted] ).

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

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