PEOPLE v. PEREZ

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

The PEOPLE, etc., respondent, v. Armando PEREZ, appellant.

Decided: November 29, 1999

WILLIAM C. THOMPSON, J.P., DANIEL W. JOY, GABRIEL M. KRAUSMAN and GLORIA GOLDSTEIN, JJ. M. Sue Wycoff, New York, N.Y. (Allen Fallek of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Cynthia Kean of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.), rendered February 26, 1997, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and certain identification testimony.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the recovery by the police of, inter alia, a baseball bat, which appeared to be bloody, from under a dumpster near where the defendant was standing with six other men, as well as the recovery of a gun and knives, established probable cause to arrest the defendant (see, People v. White, 232 A.D.2d 437, 648 N.Y.S.2d 639;  People v. Brown, 215 A.D.2d 333, 627 N.Y.S.2d 45;  People v. Johnson, 102 A.D.2d 616, 478 N.Y.S.2d 987).

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, 94, 68 N.E. 112;  People v. Newell, 173 A.D.2d 864, 571 N.Y.S.2d 69).  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 defendant's remaining contention is unpreserved for appellate review (see, CPL 470.05[2];  People v. Persaud, 237 A.D.2d 538, 656 N.Y.S.2d 34), and in any event, without merit.

MEMORANDUM BY THE COURT.

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