PEOPLE v. O'BRIEN

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 621 ), we find that the defense of justification was disproved beyond a reasonable doubt (see, People v. Lemaire, 187 A.D.2d 532 ). At trial, four eyewitnesses testified that the defendant fired three shots at the victim, who was unarmed. Since the only evidence that the defendant acted in self-defense was his own testimony, the issue of justification presented a question of credibility (see, People v. Granados, 198 A.D.2d 298 ). The resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 96 ). The jury's determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88 ). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5]).

Contrary to the defendant's contention, he was not entitled to an adverse inference charge regarding the prosecution's failure to produce the victim's clothing at the trial. There was no evidence that the police recovered the clothing at the crime scene, or otherwise had it within their possession and control (see, People v. James, 93 N.Y.2d 620 ; People v. Washington, 86 N.Y.2d 189 ; People v. Reedy, 70 N.Y.2d 826 ). Moreover, the defendant's belated claim of prejudice, made near the end of the trial, was unpersuasive (see,People v. Riviere, 173 A.D.2d 871 ).

The defendant's remaining contentions are without merit.

BRACKEN, J.P., RITTER, ALTMAN, and McGINITY, JJ., concur.