People v Leal
2007 NY Slip Op 02777 [38 AD3d 917]
March 27, 2007
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 9, 2007

The People of the State of New York, Respondent,
Isaias Leal, Appellant.

[*1] Stephen J. Pittari, White Plains, N.Y. (Jacqueline F. Oliva of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard Longworth Hecht, and Anthony J. Servino of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Alessandro, J.), rendered July 27, 2005, convicting him of robbery in the second degree (two counts), assault in the second degree, assault in the third degree, and criminal possession of stolen property in the fifth degree, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of assault in the second degree and the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant contends, and the People correctly concede, that his conviction of assault in the second degree under Penal Law § 120.05 (6) must be vacated, and that count of the indictment dismissed, as it is an inclusory concurrent count of robbery in the second degree under Penal Law § 160.10 (2) (a) (see CPL 300.30 [4]; 300.40 [3] [b]; People v Tucker, 221 AD2d 670 [1995]).

Although the defendant further contends that the verdict of guilt on the remaining charges was against the weight of the evidence, 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 was not against the weight of the evidence (see People v Romero, supra). [*2]

The defendant's remaining contentions are unpreserved for appellate review, and in any event, are without merit. Miller, J.P., Spolzino, Ritter and Dillon, JJ., concur.