SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
March 20, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JOB Z. SMITH, DEFENDANT-APPELLANT.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered June 22, 2005. The judgment convicted defendant, upon a jury verdict, of rape in the second degree.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: HURLBUTT, J.P., SMITH, FAHEY, GREEN, AND PINE, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the second degree (Penal Law § 130.30 ). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction inasmuch as his motion for a trial order of dismissal was not " specifically directed' at the alleged error" asserted on appeal (People v Gray, 86 NY2d 10, 19). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). Contrary to defendant's contention, the testimony of the victim was not incredible as a matter of law (see People v Ptak, 37 AD3d 1081, lv denied 8 NY3d 949). Finally, the sentence is not unduly harsh or severe.
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