People v. Kross

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered November 3, 2003, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s claim that the People failed to prove his identity as the perpetrator by legally sufficient evidence is unpreserved for appellate review (see People v Gray, 86 NY2d 10 [1995]; People v Elmore, 269 AD2d 404 [2000]; People v King, 238 AD2d 524 [1997]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see People v Delgadillo, 13 AD3d 643 [2004]; People v Ricone, 288 AD2d 402 [2001]; People v Mouchette, 192 AD2d 561 [1993]). Moreover, the weight to be accorded to the evidence presented, as well as the resolution of issues as to credibility, are primarily questions to be determined by the jury, which saw and heard the witnesses (see People v Prahalad, 295 AD2d 373 [2002]). The jury’s “determination should be accorded great deference on appeal and should not be disturbed unless clearly unsupported by the record” (People v Wells, 18 AD3d 482, 483 [2005]). 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 defendant’s constitutional challenge to his adjudication as a persistent felony offender pursuant to Penal Law § 70.10 and CPL 400.20 is unpreserved for appellate review and, in any 519 event, is without merit (see People v Rivera, 5 NY3d 61 [2005], cert denied — US —, 126 Sup Ct 564 [2005]; People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]; People v Jordan, 21 AD3d 1039 [2005], lv denied 5 NY3d 883 [2005]; People v Perry, 19 AD3d 619 [2005], lv denied 5 NY3d 855 [2005]). H. Miller, J.P., Mastro, Fisher and Lunn, JJ., concur.