| People v Wicht |
| 2008 NY Slip Op 01185 [48 AD3d 491] |
| February 5, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PaulWicht, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Valerie A. Livingston, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Adler,J.), rendered October 16, 2006, convicting him of attempted disseminating indecent material tominors in the first degree (three counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court,Westchester County, for further proceedings pursuant to CPL 460.50 (5).
The defendant's challenge to the constitutionality of Penal Law § 235.22, as originallyenacted in 1996, is unpreserved for appellate review (see People v Baumann & Sons Buses, Inc., 6 NY3d 404, 408[2006]; People v Davidson, 98 NY2d 738 [2002]). In any event, the defendant's argumentis without merit, as the Court of Appeals has recently held that Penal Law § 235.22, asoriginally enacted, was not unconstitutionally vague (see People v Kozlow, 8 NY3d 554, 561 [2007]).
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant'sguilt beyond a reasonable doubt. Resolution of issues of credibility is primarily a matter to bedetermined by the jury, which saw and heard the witnesses, and its determination should beaccorded great deference on appeal (seePeople v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383,410 [2004], cert denied, 542 US 946 [2004]). Upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People v Romero, [*2]7NY3d 633 [2006]). The issue of whether the affirmative defense of entrapment was establishedwas an issue of fact for the jury (see People v McGee, 49 NY2d 48 [1979], certdenied 446 US 942 [1980]). Sufficient evidence was adduced at trial from which the jurycould properly conclude that the defendant was not actively induced and was predisposed tocommit the offenses charged (see People v Castro, 299 AD2d 557 [2002]; People vLopez, 242 AD2d 641 [1997]).
The prosecutorial misconduct claim regarding the alleged failure to admit one of thedefendant's e-mail communications into evidence is unpreserved for appellate review as it wasnot raised before the trial court (see CPL 470.05 [2]). In any event, the evidence of thedefendant's guilt, without reference to the alleged error, was overwhelming, and there is noreasonable possibility that the alleged error might have contributed to the defendant's conviction.Thus, any error was harmless beyond a reasonable doubt (see People v Crimmins, 36NY2d 230, 237 [1975]; People vFaustin, 35 AD3d 499 [2006]). Ritter, J.P., Miller, Dillon and Angiolillo, JJ., concur.