Calendar Date: April 27, 2018
J. Connolly, Delmar, for appellant.
David Soares, District Attorney, Albany (Michael C. Wetmore
of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey,
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (McDonough, J.),
rendered September 2, 2016 in Albany County, upon a verdict
convicting defendant of the crime of rape in the third
who was 26 years old, allegedly had sexual intercourse with a
16-year-old girl in October 2015. He was indicted on one
count of rape in the third degree and, following a jury
trial, was found guilty as charged. Supreme Court sentenced
defendant, a second felony offender, to a prison term of two
years to be followed by postrelease supervision of 12 years.
Defendant now appeals.
affirm. Defendant's general motion to dismiss at the
close of proof did not preserve his present challenge to the
legal sufficiency of the evidence (see People v
Hawkins, 11 N.Y.3d 484, 492 ; People v Cruz,
152 A.D.3d 822, 823 , lv denied 30 N.Y.3d 1018');">30 N.Y.3d 1018
). Nevertheless, whether the elements of the offense
were proven beyond a reasonable doubt will be evaluated in
the context of reviewing defendant's contention that the
verdict is against the weight of the evidence (see People
v Miller, 160 A.D.3d 1040, 1041 ; People v
Young, 152 A.D.3d 981, 981 , lv denied 30
N.Y.3d 955 ). The People were obliged to show here that
defendant, "[b]eing  years old or more, ...
engage[d] in sexual intercourse with another person less than
 years old" (Penal Law § 130.25 ;
see Penal Law § 130.00 ).
regard, the ages of defendant and the victim were established
at trial. The victim testified as to how she was friendly
with defendant and had spent time with him on a few
occasions. She further related how, on the day of the
incident, she asked defendant to pick her up after school and
the two ended up in a secluded parking lot. They then moved
to the back seat of the car, where they partially disrobed,
defendant rolled on a condom, the victim mounted him and they
had sex for several minutes. The victim's testimony was
largely confirmed by that of a police officer who interrupted
the couple while conducting a property check and observed the
victim, her dress hiked up, straddling a half-nude defendant
in the back seat of the vehicle. A used condom was also in
plain view and, while no seminal fluid or sperm was found on
it, genetic material was recovered that DNA testing matched
to the victim and a male. Defendant and those in his paternal
line could not be excluded as the source of the male DNA, a
state of affairs true for only one out of every 1, 786 men.
noted the absence of seminal fluid or sperm on the condom and
argued that the victim was lying about the penetration needed
for sexual intercourse (see Penal Law § 130.00
). The jury nevertheless credited the victim's
testimony, which was corroborated in important points by
other evidence and was not, contrary to defendant's
suggestion, incredible as a matter of law (see People v
Wright, 155 A.D.3d 1452, 1454 , lv denied
30 N.Y.3d 1121');">30 N.Y.3d 1121 ; People v Blond, 96 A.D.3d
1149, 1152 , lv denied 19 N.Y.3d 1101');">19 N.Y.3d 1101 ).
To the extent that a different verdict was a reasonable
possibility, "[a]fter reviewing the proof in the record
and finding no reason to disregard the jury's credibility
determinations, we are unpersuaded that the verdict was
against the weight of the evidence" (People v
Tubbs, 115 A.D.3d 1009, 1010 ; see People v
Romero, 7 N.Y.3d 633, 643 ; People v
Peart, 141 A.D.3d 939, 941 , lv denied 28
N.Y.3d 1074 ).
next alleges the existence of unspecified defects in the
grand jury proceeding. Inasmuch as the verdict was not
against the weight of the evidence, it "was necessarily
founded upon legally sufficient evidence," and, as a
result, "defendant's challenges to the grand jury
proceeding are precluded to the extent they involve the
sufficiency of the evidence presented or the instructions
given to the grand jury" (People v Gaston, 147
A.D.3d 1219, 1223 n 2 ; see CPL 210.30 ;
People v Robinson, 156 A.D.3d 1123, 1128 n 8 ,
lv denied 30 N.Y.3d 1119');">30 N.Y.3d 1119 ). Our review of the
grand jury minutes does not reveal any other flaw in the
proceeding that would "warrant the exceptional remedy of
reversal" (People v Robinson, 156 A.D.3d at
1128 n 8; see People v Wisdom, 23 N.Y.3d 970, 972
defendant was sentenced to the minimum prison term permitted
for an individual in his position (see Penal Law
§ 70.80  [c];  [b] [iv]), and we cannot say that
the term of postrelease supervision imposed was in any way
harsh or excessive.
McCarthy, J.P., Egan Jr., Mulvey ...