PEOPLE v. FRANCESEHI

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

The PEOPLE, etc., Respondent, v. Tony FRANCESEHI, Appellant.

Decided: October 29, 2001

DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, SONDRA MILLER and ANITA R. FLORIO, JJ. Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Adam S. Charnoff of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered October 20, 1999, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

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 guilt beyond a reasonable doubt.   Additionally, the 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 (see, CPL 470.15[5] ).

 The defendant's contention that the trial court should have declared a mistrial based on the prosecutor's reference to the defendant's postarrest demeanor is without merit.   The trial court promptly instructed the jury to strike the reference from their minds, and followed up that instruction in detail in its jury charge (see, People v. McLean, 243 A.D.2d 756, 662 N.Y.S.2d 629;  People v. Adorno, 216 A.D.2d 686, 628 N.Y.S.2d 426;  People v. Febo, 200 A.D.2d 685, 606 N.Y.S.2d 779).   Furthermore, because the defendant declined the court's offer to give further curative instructions, any contentions related to the sufficiency of those instructions are unpreserved for appellate review (see, CPL 470.05[2] ).

The defendant's remaining contentions are unpreserved for appellate review.

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