People v. Gardner

Nov 15, 2004
Versions:12 A.D.3d 525
783 N.Y.S.2d 877
785 N.Y.S.2d 462
2004 N.Y. App. Div. LEXIS 13687

*526Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered May 15, 2002, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the evidence at trial was legally insufficient to establish his guilt is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]; People v Udzinski, 146 AD2d 245 [1989]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), 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 NY 84, 94 [1903]). 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 AD2d 86 [1974]). 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 [5]).

The defendant’s claim that the judgment of conviction should be reversed based upon the late disclosure of Brady material (see Brady v Maryland, 373 US 83 [1963]) is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, supra; People v Bynum, 70 NY2d 858 [1987]). In any event, the material at issue was turned over to the defendant before the opening statements and in sufficient time for him to use it in a meaningful fashion during the cross-examination of the People’s witnesses or as evidence during his case (see People v Cortijo, 70 NY2d 868 [1987]; People v Rodriguez, 281 AD2d 644 [2001]; People v Harvall, 289 AD2d 340 [2001]). There is no indication that a reasonable possibility exists that earlier disclosure of the material might have led to a different outcome (see People v Vilardi, 76 NY2d 67 [1990]; People v Rodriguez, supra; People v Harvall, supra). Santucci, J.P., Schmidt, Cozier and Rivera, JJ., concur.