People v Webb (Terry)

[*1] People v Webb (Terry) 2004 NY Slip Op 50496(U) Decided on March 5, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 5, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2002-950 K CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

TERRY WEBB, Appellant.

Appeal by defendant from a judgment of the Criminal Court, Kings County (J. Burke, J.), rendered May 22, 2002, convicting him, after a nonjury trial, of attempted criminal possession of a controlled substance in the seventh degree (Penal Law §§ 110.00, 220.03) and imposing sentence.

Judgment of conviction unanimously affirmed.

Defendant's argument that the evidence was legally insufficient to sustain his conviction is unpreserved for appellate review (see CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish that defendant attempted to "knowingly and unlawfully" possess a controlled substance (Penal Law §§ 110.00, 220.03).

Moreover, we are satisfied that the verdict of guilt was not against the weight of the credible evidence (see CPL 470.15 [5]). The credibility of witnesses is a question of fact, and the trier of the fact may choose to believe some, but not all, of a witness' testimony (see People v Dlugash, 41 NY2d 725, 736 [1977]). The resolution of issues of credibility, as well as the weight to be accorded the evidence presented, is primarily to be decided by the trier of the fact, which had the opportunity to see and hear the witnesses (see People v Gaimari, 176 NY 84, 94 [1903]). Although there may have been some discrepancies in the testimony of the arresting officer regarding the circumstances which led to the arrest of defendant, the weight to be accorded to such testimony was for the trier of fact, and its determination was supported by the record (see People v Garafolo, 44 AD2d 86, 88 [1974]). Nor did that testimony have all the "appearances of having been patently tailored to nullify constitutional objections" (cf. Matter of Bernice J., 248 AD2d 538 [1998]), as is defendant's contention. [*2]
Decision Date: March 05, 2004