People
v.
McAloney

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentDec 8, 2003
2 A.D.3d 538 (N.Y. App. Div. 2003)
2 A.D.3d 538767 N.Y.S.2d 914

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1998-10340.

Decided December 8, 2003.

Appeal by the defendant from a judgment of the County Court, Orange County (Pano Z. Patsalos, J.), rendered October 15, 1998, convicting him of burglary in the second degree and petit larceny, upon a jury verdict, and imposing sentence.

Salvatore C. Adamo, for appellant.

Francis D. Phillips II, District Attorney, (Daniel M. Reback of counsel), for respondent.

Before: ILLIAM D. FRIEDMANN, HOWARD MILLER, JJ.


DECISION ORDER

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review ( see CPL 470.05; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620), 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 N.Y. 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 A.D.2d 86). 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).

The defendant also has not preserved for appellate review his contention that the trial court's instruction to the jury on reasonable doubt effectively shifted the burden of proof from the prosecution to him ( see CPL 470.05). In any event, it was proper for the trial court to instruct the jury that "a reasonable doubt is doubt for which some reason can be given" ( see People v. Robinson, 218 A.D.2d 673, affd 88 N.Y.2d 1001). "That jurors be able to give a reason for their doubt if called upon to do so in the jury room is an appropriate instruction as a basic tenet of the jury deliberation process" ( People v. Robinson, supra at 674).

The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 86).

The defendant's remaining contentions are without merit.

RITTER, J.P., FLORIO, FRIEDMANN and H. MILLER, JJ., concur.