PEOPLE v. CALDWELL

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

The PEOPLE, etc., respondent, v. Jay CALDWELL, appellant.

Decided: September 30, 2008

ROBERT A. SPOLZINO, J.P., DAVID S. RITTER, MARK C. DILLON, and THOMAS A. DICKERSON, JJ. James D. Licata, New City, N.Y. (Lois Cappelletti of counsel), for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Argiro Kosmetatos and Elana L. Yeger of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Gionta, J.), rendered October 16, 2006, convicting him of forcible touching and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the evidence was legally insufficient to establish his guilt because the People's witnesses were not credible and his witnesses were credible.   This contention is unpreserved for appellate review since he did not specify those grounds in his motion to dismiss at trial (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;  People v. Johnson, 295 A.D.2d 368, 743 N.Y.S.2d 289).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 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. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Gouvatsos, 40 A.D.3d 879, 837 N.Y.S.2d 174).   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 sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).

The defendant's remaining contentions, that the court failed to charge the jury with an alibi defense and that the People's summation impermissibly shifted the burden of proof, are unpreserved for appellate review and, in any event, without merit.

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