| People v Brown |
| 2009 NY Slip Op 08517 [67 AD3d 1197] |
| November 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MarcusBrown, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Shannon K. Corbitt of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered September 26, 2007, upon a verdict convicting defendant of the crime of rape in thefirst degree and rape in the third degree (two counts).
Following a jury trial, defendant was convicted of rape in the first degree and two counts ofrape in the third degree based upon separate acts of sexual intercourse that he engaged in withtwo young girls in 2006. He was thereafter sentenced as a second violent felony offender to anaggregate prison term of 29 to 33 years, with five years of postrelease supervision.
Defendant initially contends that the verdict is against the weight of the evidence withrespect to all counts in that there was little evidence of vaginal penetration presented attrial.[FN1][*2]Inasmuch as a different verdict would not have beenunreasonable, this Court must " 'weigh the relative probative force of conflicting testimony andthe relative strength of conflicting inferences that may be drawn from the testimony' "(People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken vMiller, 291 NY 55, 62 [1943]; seePeople v Lopez-Aguilar, 64 AD3d 1037, 1037 [2009]). In conducting this review, weaccord deference to the jury's credibility assessments of the witnesses who testified and thedocumentary evidence offered at trial (see People v Lopez-Aguilar, 64 AD3d at 1037).
Here, the first victim (born in 1995) testified in detail that, on New Year's Eve 2006, she wasat her aunt's house when defendant, who was her aunt's live-in boyfriend, put her on her stomachon her aunt's bed, pulled her shorts down, held her hands in front of her and inserted his penisinto her vagina. This testimony was corroborated by the victim's nine-year-old cousin,[FN2]who went looking for the victim, found her in her mother's room and saw defendant "bumping"on top of her.
The second victim (born in 1990) testified that defendant engaged in sexual intercourse withher on two occasions in 2006, once in January and once in April. With respect to the Januaryincident, the victim, who lived with defendant and his girlfriend,[FN3]testified that she was in her room watching television when defendant entered her room andattempted to persuade her to have intercourse with him. He then pulled down her underwear andinserted his penis into her vagina. According to the victim, the April incident occurred in asimilar manner, except that it was on the living room couch. The medical evidence at trial furtherestablished that after the second assault, the victim, who had never had sexual intercourse beforedefendant assaulted her, contracted the same sexually transmitted disease as defendant'sgirlfriend. Considering that "[i]t was not unreasonable for the jury to accept the victim[s'] versionof events, including that penetration occurred" (People v Edwards, 38 AD3d 1133, 1133 [2007], lv denied9 NY3d 864 [2007]), and mindful that sexual intercourse, as defined by the Penal Law, "has itsordinary meaning and occurs upon any penetration, however slight" (Penal Law § 130.00[1]; see People v Carroll, 95 NY2d 375, 382-384 [2000]), it cannot be said that theverdict is against the weight of the evidence.
We are not persuaded by defendant's contention that the sentence imposed by County Courtis harsh and excessive. Considering the heinous nature of his crimes, in which he took advantageof the trust and respect of two young girls who viewed him as a parent figure, we find thatCounty Court did not abuse its discretion nor do extraordinary circumstances exist that wouldwarrant a modification in the interest of justice.
Defendant's remaining contentions, that he was entitled to separate trials and that CountyCourt's Sandoval ruling was improper, were not preserved for appellate review.[*3]
Cardona, P.J., Peters, Lahtinen and Stein, JJ., concur.Ordered that the judgment is affirmed.
Footnote 1: While defendant's challenge tothe legal sufficiency of the evidence was not properly preserved for appellate review, inconducting a weight of the evidence review, this Court must nonetheless consider the evidencein light of the elements of the crime (seePeople v Danielson, 9 NY3d 342, 348-349 [2007]; People v Stevens, 65 AD3d 759, 761 n 1 [2009]).
Footnote 2: This victim's cousin is thedaughter of defendant's girlfriend. Although not biologically related, during her testimony thegirl referred to defendant as her father.
Footnote 3: Defendant's girlfriend is thisvictim's godmother.