People v Efraim Diaz

People v Diaz 2006 NY Slip Op 04439 [30 AD3d 436] Decided on June 6, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 6, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
HOWARD MILLER, J.P.
FRED T. SANTUCCI
REINALDO E. RIVERA
ROBERT A. LIFSON, JJ.
2003-06900 DECISION & ORDER
2004-05254

[*1]The People, etc., respondent,

v

Efraim Diaz, appellant. (Ind. No. 3169/01)




Lynn W. L. Fahey, New York, N.Y. (De Nice Powell of counsel),
for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John
M. Castellano, Nadja Schulz, Sharon
Y. Brodt, and John F. McGoldrick of
counsel), for respondent.

Appeal by the defendant (1) from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered July 28, 2003, convicting him of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court dated June 8, 2004, which denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction.

ORDERED that the judgment and the order are affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 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 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 of guilt was not against the weight of the evidence (see CPL 470.15[5]).

We reject the defendant's contention that a reversal of his conviction is required because, during its preliminary charge, the trial court read the indictment to the jury (see People v Harper, 32 AD3d 16 [2006] [decided herewith]). [*2]

The defendant received the effective assistance of counsel (see People v Benevento, 91 NY2d 708).

The defendant's contentions that he was denied his right to be present at certain sidebar conferences are either unreviewable (see People v Mauleon, 266 AD2d 66, 66-67), or without merit since the proceedings at issue involved only questions of law or procedure (see People v Rodriguez, 85 NY2d 586, 590-591).

The defendant's contention that unspecified "cumulative errors" that allegedly occurred at trial require the reversal of his conviction is unpreserved for appellate review.
MILLER, J.P., SANTUCCI, RIVERA and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court