Calendar Date: October 21, 2009
Before: Cardona, P.J., Peters, Lahtinen, Kane and Stein, JJ.
Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered August 8, 2007, upon a verdict convicting defendant of the crimes of criminal sexual act in the second degree (nine counts), rape in the second degree (three counts), criminal sexual act in the third degree and rape in the third degree.
Defendant allegedly had sexual contact -- oral sex and sexual intercourse -- with his paramour's daughter on a variety of dates between February 2002 and April 2005 when the victim's age ranged from 12 to 15 years. As a result, defendant was charged in a 14-count indictment with nine counts of criminal sexual act in the second degree, three counts of rape in the second degree, one count of criminal sexual act in the third degree and one count of rape in the third degree. A jury found him guilty on all counts. County Court sentenced him to an aggregate prison term of 19a to 58 years which, pursuant to Penal Law § 70.30, has been adjusted to 10 to 20 years. Defendant appeals.
Defendant's argument regarding the legal sufficiency of the evidence was not preserved and the record reveals no reason to exercise our interest of justice jurisdiction with regard to such issue (see People v Mann, 63 AD3d 1372, 1373 ). There is, however, no preservation requirement as to defendant's weight of the evidence argument (see People v Danielson, 9 NY3d 342, 348 ). Weight of the evidence review is "a two-step approach that requires courts to first determine whether, based on all the credible evidence, a different finding would not have been unreasonable," and, if that step is satisfied, "then the appellate court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633, 643  [internal quotation marks and citations omitted]; see People v Danielson, 9 NY3d at 348). In conducting this review, "[g]reat deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" (People v Bleakley, 69 NY2d 490, 495 ).
A different conclusion would not have been unreasonable in this case and, thus, we will weigh the evidence. Since the age element of the crimes was not disputed, the focus of the proof was on whether the alleged contact occurred. The victim testified in detail regarding the sexual activities. She was able to tie some incidents to specific dates because they occurred, for example, on her birthday or on defendant's birthday. A phone call between the victim and defendant, which police arranged for the victim to record, contained several statements by defendant strongly indicating that the sexual activity had occurred. One example is this exchange early in the call:
"Victim: [T]he cops are questioning me about you having sex with me.
Defendant: You want me to go to jail forever or what?
Victim: No but, what do I . . . what do I say? I mean I'm like shaking right now cuz the cop just came here.
Defendant: Just tell them nothing, nothing, nothing that's it. They can't pressure you [victim's name]. Okay?
Victim: So now I have to just do like, just cover you?
Defendant testified in his own defense denying that the contact occurred and attempting to explain his comments in the recorded phone call. He further related that shortly before making the allegations against him, the victim had presented significant disciplinary problems as she began a relationship with a new boyfriend. Inconsistencies in the victim's story were pointed out and a former close friend of the victim testified that she had a poor reputation for veracity. We discern no reason in this record to disregard the credibility ...