| People v Johnson |
| 2008 NY Slip Op 08826 [56 AD3d 1172] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v VirgilJohnson, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered June 26,2007. The judgment convicted defendant, upon a jury verdict, of attempted rape in the firstdegree, sexual abuse in the first degree, attempted rape in the second degree and endangering thewelfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1]) andattempted rape in the second degree (§§ 110.00, 130.30 [1]). We reject defendant'scontention that the verdict is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). "The testimony of the victim was not so inconsistent orunbelievable as to render it incredible as a matter of law" (People v Black, 38 AD3d 1283, 1285 [2007], lv denied 8NY3d 982 [2007]). Defendant failed to preserve for our review his further contention that theevidence is legally insufficient to support his conviction of the attempted rape counts (seePeople v Gray, 86 NY2d 10, 19 [1995]). Finally, we reject the contention of defendant thathe was punished for exercising his right to trial based on the fact that the sentence imposed aftertrial was more severe than the one offered pursuant to the proposed plea agreement. There is no"evidence that defendant was given the lengthier sentence solely as a punishment for exercisinghis right to a trial" (People v Morin, 192 AD2d 791, 794 [1993], lv denied 81NY2d 1077 [1993]; see People v Simon, 180 AD2d 866, 867 [1992], lv denied80 NY2d 838 [1992]; see generally People v Pena, 50 NY2d 400, 411-412 [1980],rearg denied 51 NY2d 770 [1980], cert denied 449 US 1087 [1981]).Present—Martoche, J.P., Smith, Centra, Peradotto and Pine, JJ.