Opinion
Argued April 27, 1999
June 7, 1999
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rug, J.), rendered March 5, 1997, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Rachel Altstein of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Alyson J. Gill, David N. Saffra, and Craig Brown of counsel), for respondent.
GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, SANDRA J. FEUERSTEIN, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the People failed to prove his guilt by legally sufficient evidence because the complainant's testimony was inconsistent, unreliable, and uncorroborated by other evidence is unpreserved for appellate review ( 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. 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). 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 is not against the weight of the evidence ( see, CPL 470.15).
We agree with the defendant that the prosecutor improperly commented on the photographic identification of the defendant in his initial opening statements. However, the court gave a sufficient curative instruction and the jury is presumed to have followed it ( see, People v. Berg, 59 N.Y.2d 294; People v. Corrado, 256 A.D.2d 586 [2d Dept., Dec. 28, 1998]). Therefore, reversal is not warranted.