| People v Kline |
| 2008 NY Slip Op 02176 [49 AD3d 665] |
| March 11, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jeffrey Kline, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Vered Adoni and Elana L. Yeger ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Zambelli,J.), rendered August 2, 2005, convicting him of rape in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, there was no Brady violation (see Brady vMaryland, 373 US 83 [1963]) in the instant case (see People v LaValle, 3 NY3d 88, 110 [2004]; People vCortijo, 70 NY2d 868, 870 [1987]). Furthermore, the trial court providently exercised itsdiscretion in denying the defendant's motion to dismiss the indictment because of aRosario violation (see People v Rosario, 9 NY2d 286 [1961]), since there was noshowing that the defendant was substantially prejudiced (see People v Martinez, 71NY2d 937, 940 [1988]; People v Best, 186 AD2d 141 [1992]).
The defendant's contention that the evidence was legally insufficient to establish his guilt ofrape in the third degree is unpreserved for appellate review (see CPL 470.05 [2]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Resolution of issues of credibility is primarily amatter to be determined by the jury, which saw and heard the witnesses, and its determinationshould be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]). Upon theexercise of our factual review power (see CPL 470.15 [5]), we are satisfied that theverdict of guilt was not against the weight of the evidence (see [*2]People v Romero, 7 NY3d633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Spolzino, J.P., Florio, Angiolillo and Dickerson, JJ., concur.