Opinion
November 2, 1992
Appeal from the Supreme Court, Queens County (Sherman, J.).
Ordered that the judgment is affirmed.
On appeal, the defendant contends that the evidence was legally insufficient to support his conviction of robbery in the first degree and grand larceny in the fourth degree because the indictment charged him with acting in concert with other persons, when in fact the prosecution proceeded at trial on the theory of his culpability as a principal. This contention is unpreserved for appellate review, as the issue was not raised during the trial (see, People v Duncan, 46 N.Y.2d 74, cert denied 442 U.S. 910; People v Udzinski, 146 A.D.2d 245). In any event, the contention is without merit. Because there is no distinction between criminal culpability as a principal and as an accessory (see, People v Duncan, supra; People v Beckett, 186 A.D.2d 209; People v Smith, 156 A.D.2d 756), the evidence adduced at the trial established every element of the charged crimes beyond a reasonable doubt. Moreover, 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). 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 N.Y. 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the evidence (see, People v Garafolo, 44 A.D.2d 86, 88).
The defendant's claim that the court gave an improper charge as to his liability as an accomplice is also unpreserved for appellate review (see, People v Nuccie, 57 N.Y.2d 818; People v Breazil, 120 A.D.2d 602). In any event, even though the prosecution proceeded on the theory that the crime was committed by a single perpetrator, the instruction to the jury on acting in concert, even if unwarranted, could not have prejudiced the defendant (see, People v Rogers, 177 A.D.2d 666; People v Smith, 156 A.D.2d 756, supra; People v Lewis, 105 A.D.2d 758; People v Licausi, 98 A.D.2d 751, 752).
We find no support in the record for the defendant's claim of ineffective assistance of counsel predicated upon his allegation that counsel ignored his express desire to testify before the Grand Jury (see, People v Brown, 28 N.Y.2d 282, 286-287; People v Hamlin, 153 A.D.2d 644, 645). Even assuming the truth of the defendant's allegations, his counsel's failure to serve notice of his desire to testify before the Grand Jury would not, standing alone, amount to a denial of the effective assistance of counsel (see, People v Baldi, 54 N.Y.2d 137; People v Hamlin, 153 A.D.2d 644, 646, supra). Furthermore, the Supreme Court correctly denied the defendant's motion to dismiss the indictment on the ground that he was denied an opportunity to testify before the Grand Jury, as the motion was untimely (see, CPL 190.50).
The defendant's sentence is not excessive (see, People v Suitte, 90 A.D.2d 80, 85).
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Thompson, J.P., Rosenblatt, Lawrence and Miller, JJ., concur.