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PEOPLE v. GORDON

Appellate Division of the Supreme Court of New York, Second Department.
Jan 22, 2008
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Ordered that the judgment is affirmed.

As a threshold matter, the defendant's legal sufficiency argument is unpreserved for appellate review, as he failed to raise it before the trial court in his motion to dismiss ( see People v Williams, 38 AD3d 576). In any event, 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. Contrary to the defendant's contention, the evidence, even in the absence of medical testimony, was legally sufficient to sustain a finding of "impairment of physical condition or substantial pain" (Penal Law ยง 10.00) necessary to support a finding of physical injury ( see People v Thomas, 195 AD2d 581; People v Esquilin, 141 AD2d 838).

Furthermore, the verdict was not 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; People v Mateo, 2 NY3d 383, 410; People v Trot-man, 39 AD3d 881). Upon the exercise of our factual review power ( see CPL 470.15), we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero, 7 NY3d 633).

The defendant's remaining contention is unpreserved for appellate review and, in any event, is without merit.