Opinion
2006-2020 K CR.
Decided October 30, 2008.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Miriam R. Best, J.), rendered October 26, 2006. The judgment convicted defendant, after a nonjury trial, of attempted criminal mischief in the fourth degree.
Judgment of conviction affirmed.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
After a nonjury trial, defendant was convicted of attempted criminal mischief in the fourth degree (Penal Law §§ 110.00, 145.00). On appeal, defendant contends that the trial court improperly allowed police officers to testify as to statements made to them by unidentified people in a crowd, thereby depriving defendant of his constitutional right to confront the witnesses against him. Although defense counsel objected to certain of this testimony at trial, counsel did not assert the specific ground now raised on appeal. Consequently, the issue of whether defendant was deprived of his right to confrontation is unpreseved for appellate review ( see CPL 470.05; People v Fleming, 70 NY2d 947; People v Perez , 9 AD3d 376 , 377). We note, however, that the Confrontation Clause does not prohibit the use of testimonial hearsay statements for purposes other than establishing the truth of the matter asserted ( see Crawford v Washington, 541 US 36, 59 n 9 [2004]; People v Reynosa, 2 NY3d 820, 821). The police officers testified as to what people in the crowd told them regarding a dog located at the scene of the incident. The statements by members of the public were not admitted for their truth, but were admitted to show why the police officers began their investigation to discover who was the owner of the dog, which investigation led them to defendant ( see e.g. People v Smith , 27 AD3d 242 , 243; People v Ruis , 11 AD3d 714 ; People v Perez, 9 AD3d at 377). In any event, absent any showing of prejudice, the trial judge, as the trier of fact, is presumed to have considered only legally competent evidence ( see People v Concepcion, 266 AD2d 227).
Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( see CPL 470.05; People v Gray, 86 NY2d 10, 20-21). In any event, viewing the evidence in the light most favorable to the People ( see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Moreover, we find that the verdict was not against the weight of the evidence ( see CPL 470.15; People v Danielson , 9 NY3d 342 ; People v Romero , 7 NY3d 633 ). The resolution of issues of credibility is primarily a matter to be determined by the trier of fact which saw and heard the witnesses, and its determination should be accorded great weight on appeal ( see People v Romero , 7 NY3d 633 , 644-645, supra). We find no basis to disturb the determination of the trial court.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.