People v. Waller

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Roman, J.), rendered May 21, 2002, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the evidence was legally insufficient and against the weight of the evidence. However, 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 jury, 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, 88 [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 trial court properly denied the defendant’s motion to set aside the verdict pursuant to CPL 330.30 based on newly-discovered evidence since the defendant failed to establish that the evidence could not have been produced at the trial with due diligence and that the evidence was of such character as to create a probability that had it been received in evidence the verdict would have been more favorable to the defendant (see CPL 330.30 [3]; People v Salemi, 309 NY 208 [1955], cert denied 350 US 950 [1956]; People v Pacheco, 293 AD2d 629 [2002]).

The defendant’s remaining contentions either are unpreserved for appellate review or without merit. Prudenti, PJ., Goldstein, Luciano and Cozier, JJ., concur.