Opinion
March 14, 1988
Appeal from the Supreme Court, Kings County (DeLury, J.).
Ordered that the judgment is affirmed.
For the first time on appeal, the defendant contends that suppression of his jacket was improperly denied because it was seized incident to a nonconsensual, warrantless search, absent any exigent circumstances (see, Payton v. New York, 445 U.S. 573). The issue of lack of consent was raised neither at the pretrial hearings nor at the hearing held midway into the trial and is therefore unpreserved for our review (see, People v. Martin, 50 N.Y.2d 1029). Nor does the interest of justice compel a reversal on the record before us which reveals that the defendant's mother knowingly consented to the police's entry into the apartment. The record is devoid of any inference of coercion or misrepresentation. Thus, when the officer saw the orange jacket at the foot of the bed and told the defendant to put it on after the defendant indicated it was his jacket, the seizure was justified under the voluntary consent exception to the warrant requirement and under the seizure incident to arrest exception (see, People v. Knapp, 52 N.Y.2d 689; People v. Gonzalez, 39 N.Y.2d 122; People v. Singleteary, 35 N.Y.2d 528; People v. Brosnan, 32 N.Y.2d 254; People v. Carter, 30 N.Y.2d 279). The defendant testified that the jacket was taken from his closed closet. However, conflicting inferences are to be decided by the trier of fact and we do not find that the hearing court's determination to credit the officer's testimony over that of the defendant was unsupportable as a matter of law (see, People v. Yukl, 25 N.Y.2d 585, cert denied 400 U.S. 851; People v. Nieves, 102 A.D.2d 858).
The alleged errors with respect to the court's charge were neither excepted to at the trial nor were specific requests to charge made. Therefore, the asserted errors are unpreserved for our review (see, CPL 470.05; People v. Best, 119 A.D.2d 758). In light of the heinous nature of this crime, the strong circumstantial evidence against the defendant and the weakness of the alibi testimony, we decline to address these contentions in the interests of justice (People v. Beckles, 115 A.D.2d 749, lv denied 67 N.Y.2d 759).
The defendant contends that the prosecution's witnesses, because of their criminal histories, should not have been believed by the jury. However, 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, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 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 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). Kunzeman, J.P., Eiber, Kooper and Harwood, JJ., concur.