Opinion
2002-02879.
Decided January 26, 2004.
Appeal by the defendant from a judgment of the County Court, Nassau County (Boklan, J.), rendered March 4, 2002, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Leon H. Tracy, Jericho, N.Y., for appellant.
Denis Dillon, District Attorney, Mineola, N.Y. (Judith R. Sternberg of counsel), for respondent.
Before: DANIEL F. LUCIANO and BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress physical evidence, as there was probable cause for the arrest ( see generally People v. McRay, 51 N.Y.2d 594; see also People v. Ayarde, 229 A.D.2d 590; People v. Balas, 104 A.D.2d 1039).
Contrary to the defendant's further contention, the Supreme Court properly denied his request for a missing witness charge with respect to the individual who purchased the drugs from him. The defendant never made the required prima facie showing that the witness could be expected to testify in the People's favor or that she was under their control ( see generally People v. Savinon, 100 N.Y.2d 192; People v. Macana, 84 N.Y.2d 173; People v. Gonzalez, 68 N.Y.2d 424).
The defendant's contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review since he did not specify in his motion to dismiss at the trial the grounds he now raises ( see CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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. Gaimari, 176 N.Y. 84, 94). 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). 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).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).
PRUDENTI, P.J., GOLDSTEIN, LUCIANO and COZIER, JJ., concur.