177 A.D.2d 675 | N.Y. App. Div. | 1991
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hillery, J.), rendered June 13, 1988, convicting him of manslaughter in the first degree, assault in the first degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant’s contention, the jury’s verdict convicting him of manslaughter in the first degree (Penal Law § 125.20 [1]) was not against the weight of the evidence. According to credible testimony given by the People’s witnesses, the defendant, while seated in his car, shot the decedent and his companion at point blank range as they approached the car. The jury was free to find that, at most, the defendant had been verbally provoked. 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 NY 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 AD2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]).
Because the defendant expressly requested that assault in the first degree be submitted as a lesser included offense of attempted murder in the second degree, his present claim that this was improper has been waived (see, CPL 300.50 [1]; People v Ford, 62 NY2d 275).
The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Rosenblatt, J. P., Miller, Ritter and Copertino, JJ., concur.
