People v Smith (Wishart)

[*1] People v Smith (Wishart) 2007 NY Slip Op 50594(U) [15 Misc 3d 128(A)] Decided on March 21, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2004-576 K CR.

The People of the State of New York, Respondent,

against

Wishart Smith, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John Carter, J.), rendered April 13, 2004. The judgment convicted defendant, upon a jury verdict, of petit larceny and criminal possession of stolen property in the fifth degree.

Judgment of conviction affirmed.

Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review since he made only a general motion to dismiss and did not specify any of the grounds raised on appeal (see CPL 470.05 [2]; People v Leon, 19 AD3d 509 [2005]). In any event, 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 defendant's guilt of petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40) beyond a reasonable doubt. Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Resolution of issues of credibility is primarily a matter to be determined by the trier of fact, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, supra).

Since defendant did not object to the court's Allen charge (see Allen v United States, 164 US 492 [1896]), he failed to preserve for appellate review his argument that the charge was coercive (see CPL 470.05 [2]; People v Battle, 15 AD3d 413 [2005]). In any event, viewing the charge as a whole, it was balanced, proper and encouraging rather than coercive (see People v [*2]Ford, 78 NY2d 878 [1991]; People v Pagan, 45 NY2d 725 [1978]; People v Battle, 15 AD3d 413, supra; People v Kinard, 215 AD2d 591 [1995]).

Pesce, P.J., Golia and Rios, JJ., concur.