| People v Granger |
| 2018 NY Slip Op 08197 [166 AD3d 1377] |
| November 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Barkim L. Granger, Appellant. |
Paul R. Corradini, Elmira, for appellant, and appellant pro se.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephanie Milks ofcounsel), for respondent.
Rumsey, J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered August 6, 2015, upon a verdict convicting defendant of the crimes of rapein the first degree and rape in the third degree.
Defendant, who was 31 years old, allegedly had sexual intercourse with a15-year-old-girl in February 2013. He was indicted on one count of rape in the firstdegree and one count of rape in the third degree. Following a jury trial, defendant wasconvicted as charged and sentenced, as a second violent felony offender, to an aggregateprison term of 14 years followed by 10 years of postrelease supervision. Defendantappeals.
Defendant contends that the verdict was not supported by legally sufficient evidenceand was against the weight of the evidence. "When considering a challenge to the legalsufficiency of the evidence, we view the evidence in the light most favorable to thePeople and evaluate whether there is any valid line of reasoning and permissibleinferences which could lead a rational person to the conclusion reached by the jury on thebasis of the evidence at trial and as a matter of law satisfy the proof and burdenrequirements for every element of the crime charged" (People v Cole, 162 AD3d1219, 1223 [2018] [internal quotation marks and citations omitted], lvdenied 32 NY3d 1002 [2018]). A weight of the evidence review "requires us first todecide whether, based on all the credible evidence, a different finding would not havebeen unreasonable, and then, like the trier of fact below, weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that maybe drawn from the testimony. When conducting a review of the weight of the evidence,we view the evidence in a neutral light and defer to the jury's credibility assessments" (People v Criss, 151 AD3d1275, 1276 [2017] [internal quotation marks, brackets and citations omitted], lvdenied 30 NY3d 979 [2017]).
[*2] Aperson is guilty of rape in the first degree when, as relevant here, "he or she engages insexual intercourse with another person . . . [w]ho is incapable of consent byreason of being physically helpless" (Penal Law § 130.35 [2]). "It is wellestablished that physical helplessness is defined broadly and may include a sleepingvictim" (People v Manning,81 AD3d 1181, 1181 [2011] [citations omitted], lv denied 18 NY3d 959[2012]). A person is guilty of rape in the third degree, as relevant here, if he or she is 21years old or older and engages in sexual intercourse with another person who is less than17 years old (see Penal Law § 130.25).
The victim testified that she lived with her uncle and his family and that she first metdefendant—her cousin—when he visited her home on February 15, 2013for a birthday celebration. During the evening of February 16, 2013, she watchedtelevision with defendant before she went upstairs to go to bed. She testified that shewore a shirt, underwear and stretchy leggings to bed and fell asleep under the covers. Thevictim's testimony that she awoke to find defendant on top of her in the midst ofintercourse with his penis in her vagina, when viewed in the light most favorable to thePeople, is legally sufficient to establish the elements of first degree rape (see People v Greene, 13 AD3d991, 992 [2004], lv denied 5 NY3d 789 [2005]; People vKrzykowski, 293 AD2d 877, 879 [2002], lv denied 100 NY2d 643 [2003];People v Thiessen, 158 AD2d 737, 740 [1990], mod 76 NY2d 816[1990]). Likewise, there is legally sufficient evidence of third degree rape based on thevictim's testimony that defendant engaged in sexual intercourse with her and theundisputed evidence that defendant and the victim were then 31 and 15 years old,respectively.
Turning to consideration of the weight of the evidence, a different verdict would nothave been unreasonable on the charge of rape in the first degree, in light of defendant'sargument that the victim must have been awake prior to penetration because it wouldhave been impossible for him to remove her clothing without awakening her.[FN1] The jury had theopportunity to hear the victim's testimony that she was asleep when sexual intercoursebegan and to observe her demeanor. There was no conflicting evidence, and the victim'scredibility was fully explored during cross-examination.[FN2] When we view the evidence in aneutral light and accord deference to the jury's credibility assessments, we cannot say thatthe verdict was against the weight of the evidence. Defendant's remaining contentionshave been found to lack merit.
Garry, P.J., Egan Jr., Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The jury could not havereasonably reached a different verdict on the charge of rape in the third degree based onthe uncontroverted testimony that defendant engaged in sexual intercourse with thevictim and the evidence conclusively establishing their ages at that time.
Footnote 2:We find unavailingdefendant's argument that the verdict was not supported by the weight of the evidencebecause the victim's trial testimony that she was asleep when sexual intercoursecommenced was inconsistent with her grand jury testimony. The victim's grand jurytestimony regarding when she awoke was inconclusive and defendant was permitted touse it to impeach the credibility of the victim's trial testimony.