200 A.D.2d 690 606 N.Y.S.2d 768

The People of the State of New York, Respondent, v Ralph Mercado, Appellant.

[606 NYS2d 768]

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heller, J.), rendered September 13, 1989, convicting him of robbery in the first degree and assault in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that reversible error took place when the trial court, without a request from defense counsel, *691instructed the jury not to draw any adverse inference from the defendant’s failure to testify. Since the defendant made no objection to this instruction at the time it was given or thereafter, this issue is unpreserved for appellate review (see, CPL 470.05 [2]; People v Autry, 75 NY2d 836; People v Herbert, 100 AD2d 883).

The defendant further contends that the jury’s verdict was against the weight of the evidence because the testimony of the victim should not have been credited. We note that 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). 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 (see, CPL 470.15 [5]).

We have considered the defendant’s remaining contentions and find them to be without merit. Mangano, P. J., O’Brien, Pizzuto and Santucci, JJ., concur.

People v. Mercado
200 A.D.2d 690 606 N.Y.S.2d 768

Case Details

Name
People v. Mercado
Decision Date
Jan 24, 1994
Citations

200 A.D.2d 690

606 N.Y.S.2d 768

Jurisdiction
New York

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