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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TROY SMITH, Appellant.

Ordered that the judgment under indictment No. 02-00025 is modified, on the law, by vacating the sentence imposed for the conviction of criminal possession of a weapon in the third degree; as so modified, the judgment under Orange County indictment No. 02-00025 is affirmed, and the matter is remitted to the County Court, Orange County for resentencing in accordance herewith; and it is further,

Ordered that the judgment rendered under indictment No. 02-00348 is affirmed.

Viewing the evidence adduced at trial 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 robbery in the first degree and criminal possession of a weapon in the third degree beyond a reasonable doubt under indictment No. 02-00025. Resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the jury ( see People v Gaimari, 176 NY 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record ( see People v Garafolo, 44 AD2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see CPL 470.15).

As the People correctly concede, the court erred in sentencing the defendant as a persistent violent felony offender on the charge of criminal possession of a weapon in the third degree (Penal Law § 265.02) under indictment No. 02-00025, as that charge does not qualify as a violent felony under the statute ( see Penal Law § 70.08 [a]). Therefore, the judgment must be modified to vacate the sentence on the conviction of criminal possession of a weapon in the third degree under indictment No. 02-00025, and the matter remitted for resentencing on that count.

The remainder of the sentences imposed were not excessive ( see People v Suitte, 90 AD2d 80).

The defendant's remaining contentions are without merit.

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PEOPLE v. SMITH
(Oct 24, 2006)