Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered February 26, 2004, convicting defendant, after a jury trial, of rape in the first degree and sexual abuse in the first degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 25 years to life, unanimously affirmed.
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.
Mazzarelli, J.P., Andrias, Friedman, Renwick, Freedman, JJ.
Defendant's challenge to the sufficiency of the evidence is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find that the verdict was based on legally sufficient evidence. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). There is no basis for disturbing the jury's determinations concerning credibility. The victim's testimony clearly established the element of penetration.
Defendant's claim of prosecutorial misconduct is unreviewable on direct appeal because it relates to matters outside the record, which defendant has not sought to expand by way of a CPL 440.10 motion. Defendant's remaining contention is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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