Opinion
February 5, 1996
Appeal from the County Court, Orange County (Pano Z. Patsalos, J.).
Ordered that the judgment is affirmed.
The defendant contends that the complainant should not have been believed by the jury because she had imbibed alcohol prior to the rape. However, 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 was not against the weight of the evidence (see, CPL 470.15).
There is no merit to the defendant's contention that he was deprived of a fair trial by the failure of the police to dust the knife for fingerprints and to conduct DNA testing on the seminal fluids gathered from the complainant's clothing. The failure of the police to conduct certain tests on evidentiary material did not deny the defendant a fair trial (see, People v Callendar, 207 A.D.2d 900; People v. Taylor, 169 A.D.2d 791, 792). Furthermore, to the extent that this evidence may have had any relevance, defense counsel pointed to its absence on cross-examination and summation and attempted to use the absence to the defendant's advantage (see, People v. Taylor, supra).
The court fairly and impartially set forth the contentions of the People and the defendant during the jury charge (see, People v. Saunders, 64 N.Y.2d 665). Mangano, P.J., Miller, Ritter and Pizzuto, JJ., concur.