PEOPLE v. McGRIFF

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

The PEOPLE, etc., Respondent, v. Dewitt McGRIFF, Appellant.

Decided: October 26, 1998

Before BRACKEN, J.P., and MILLER, O'BRIEN and SANTUCCI, JJ. Lynn W.L. Fahey, New York City (Katherine R. Schaefer, of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Robin A. Forshaw, and Johnnette Traill, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered October 8, 1997, convicting him of attempted burglary in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the People failed to prove that he displayed a gun 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. Udzinski, 146 A.D.2d 245, 250, 541 N.Y.S.2d 9).   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 is legally sufficient to establish that the defendant displayed a gun to the complainant.   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 jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 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, 88, 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 (CPL 470.15 [5] ).

 We also reject the defendant's contention that the trial court's Allen charge (see, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) was coercive and unbalanced.   A review of the charge as a whole reveals that it was essentially neutral, directed at the jurors in general, and did not coerce them to reach a verdict or achieve a particular result (see, People v. Ford, 78 N.Y.2d 878, 573 N.Y.S.2d 442, 577 N.E.2d 1034;  People v. Pagan, 45 N.Y.2d 725, 408 N.Y.S.2d 473, 380 N.E.2d 299;  People v. Clarke, 188 A.D.2d 541, 591 N.Y.S.2d 355).

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

MEMORANDUM BY THE COURT.

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