Opinion
February 13, 1990
Appeal from the County Court, Orange County (Ritter, J.).
Ordered that the judgment is modified, on the law, by reducing the conviction of robbery in the second degree under count two of the indictment to robbery in the third degree, and vacating the sentence imposed thereon; as so modified the judgment is affirmed and the matter is remitted to the County Court, Orange County, for resentencing on the defendant's conviction under count two of the indictment.
Contrary to the defendant's contentions, the evidence when viewed in a light most favorable to the prosecution was legally sufficient to establish the defendant's guilt of robbery in the second degree under the first count of the indictment (see, People v Contes, 60 N.Y.2d 620). It is well settled that resolution of issues of credibility, as well as the weight to be accorded 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 under the first count of the indictment was not against the weight of the evidence (see, CPL 470.15).
The proof adduced at trial, however, was insufficient to establish that the complainant suffered substantial pain or physical impairment within the meaning of Penal Law § 10.00 (9) and § 160.10 (2) (a) with regard to the conviction of robbery in the second degree under the second count of the indictment. Since there is sufficient evidence to support a conviction of the lesser included offense of robbery in the third degree (see, Penal Law § 160.05), the judgment is modified accordingly (see, People v Melvin, 149 A.D.2d 536). Mollen, P.J., Eiber, Sullivan and Rosenblatt, JJ., concur.