People v Mercedes

People v Mercedes 2007 NY Slip Op 05758 [41 AD3d 864] June 26, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

The People of the State of New York, Respondent,
v
Ramon E. Mercedes, Appellant.

—[*1] Mitchell Dranow, Mineola, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Andrea M. DiGregorio of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (LaPera, J.), rendered July 21, 2005, convicting him of sexual abuse in the first degree and assault in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt of assault in the third degree beyond a reasonable doubt. Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt on the charges of sexual abuse in the first degree and assault in the third degree was not against the weight of the evidence (see People v Romero, supra).

Contrary to the defendant's contention, the trial court correctly admitted into evidence, under the excited utterance exception to the hearsay rule, an audiotape of the complainant's 911 calls to the police (see People v Prashad, 297 AD2d 352 [2002]; People v Wine, 279 AD2d 424 [2001]; People v Hawkins, 193 AD2d 758, 759 [1993]). [*2]

The defendant's contention raised in point two of his brief is without merit and the defendant's contention raised in point five of his brief is unpreserved for appellate review. Rivera, J.P., Goldstein, Skelos and Balkin, JJ., concur.