PEOPLE v. NIXON

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

The PEOPLE, etc., respondent, v. Saul NIXON, appellant.

Decided: September 26, 2005

THOMAS A. ADAMS, J.P., STEPHEN G. CRANE, GLORIA GOLDSTEIN, and PETER B. SKELOS, JJ. Alireza Dilmaghani, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Jennifer Etkin of counsel of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosengarten, J.), rendered November 7, 2002, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19-21, 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 identity and guilt beyond a reasonable doubt (see People v. McFadden, 18 A.D.3d 782, 795 N.Y.S.2d 452).

 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. Bleakley, 69 N.Y.2d 490, 494-495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v. Torres, 282 A.D.2d 481, 722 N.Y.S.2d 414;  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] ).

 We also reject the defendant's assertion that he was denied the effective assistance of counsel.  “To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's” alleged failures in representation (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   The defendant failed to do so.

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