47 A.D.3d 833
N.Y. App. Div.
2008

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JASON GORDON, Appellant.

Appellate Division of the Supreme Court of New York, Second Department

849 NYS2d 168

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered May 16, 2005, convicting him of robbery in the first degree and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

As a threshold matter, the defendant‘s legal sufficiency argument is unpreserved for appellate review, as he failed to raise it before the trial court in his motion to dismiss (see People v Williams, 38 AD3d 576 [2007]). 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. Contrary to the defendant‘s contention, the evidence, even in the absence of medical testimony, was legally sufficient to sustain a finding of “impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]) necessary to support a finding of physical injury (see People v Thomas, 195 AD2d 581 [1993]; People v Esquilin, 141 AD2d 838 [1988]).

Furthermore, the verdict was not against the weight of the evidence. Resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Trotman, 39 AD3d 881 [2007]). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The defendant‘s remaining contention is unpreserved for appellate review and, in any event, is without merit.

Rivera, J.P., Spolzino, Carni and McCarthy, JJ., concur.