Opinion
March 31, 1999
Appeal from Judgment of Oswego County Court, McCarthy, J. — Murder, 2nd Degree.
PRESENT: GREEN, J. P., PINE, WISNER, HURLBUTT AND CALLAHAN, JJ.
Judgment unanimously affirmed. Memorandum: County Court properly determined that the motion to suppress footprint evidence, made for the first time during defendant's second trial, was untimely ( see, People v. Sturgis, 112 A.D.2d 757, 757-758, lv denied 68 N.Y.2d 817, 918). We reject the contention that defendant was denied a fair trial as the result of prosecutorial misconduct. The majority of the alleged instances of misconduct have not been preserved for our review ( see, CPL 470.05), and we decline to exercise our power to review them as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). "Because those errors that were preserved `were not so egregious or prejudicial as to deprive defendant of a fair trial, reversal is not warranted'" ( People v. Toumbis, 204 A.D.2d 1026, quoting People v. Dawkins, 203 A.D.2d 957, 958, lv denied 84 N.Y.2d 824). Defendant's general motion to dismiss at the close of the People's case failed to preserve for our review the present contention that the evidence is insufficient to support the conviction ( see, People v. Gray, 86 N.Y.2d 10, 19), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). We reject defendant's contention that the verdict is contrary to the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). "[R]esolution 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" ( People v. Davis, 204 A.D.2d 736, lv denied 84 N.Y.2d 906). We also reject defendant's contention that the court erred in allowing the People to introduce certain rebuttal evidence. Only one of the alleged errors, i.e., the admission of testimony concerning the bloodstains on defendant's shirt, is preserved for our review ( see, People v. Osuna, 65 N.Y.2d 822, 824), and we decline to exercise our power to address the remainder of the alleged errors as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). The testimony concerning the blood stains was properly allowed inasmuch as it was inconsistent with defendant's explanation of the origin of the stains ( see, People v. Campbell, 216 A.D.2d 482, lv denied 86 N.Y.2d 791). The evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defense counsel provided meaningful representation ( see, People v. Baldi, 54 N.Y.2d 137, 147). The sentence is neither unduly harsh nor severe.