| People v Crawson |
| 2008 NY Slip Op 09298 [56 AD3d 1051] |
| November 26, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Morgan R.Crawson, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered December 13, 2007, upon a verdict convicting defendant of two counts of the crime ofrape in the second degree.
Defendant was charged in an indictment with two counts of rape in the second degree aftershe allegedly engaged in sexual intercourse with the victim (born in 1992) on two separateoccasions in 2006. Following a jury trial, defendant was found guilty as charged. County Courtthereafter denied defendant's motion to set aside the verdict and sentenced her, as a second childsexual assault felony offender, to seven years of imprisonment, to be followed by five years ofpostrelease supervision. Defendant appeals, and we now affirm.
Initially, we reject defendant's argument that the verdict was against the weight of theevidence. In conducting a weight of the evidence review, we must first determine whether "adifferent finding would not have been unreasonable" and, if not, "then [we] must, like the trier offact below, 'weigh the relative probative force of conflicting testimony and the relative strengthof conflicting inferences that may be drawn from the testimony' " (People v Bleakley, 69NY2d 490, 495 [1987] [citation omitted]; see People v Romero, 7 NY3d 633, 643-644 [2006]). Moreover,weight of the evidence review is not limited to a determination of credibility issues; [*2]rather, such review is also element-based (see People v Johnson, 10 NY3d875, 878 [2008]; People vDanielson, 9 NY3d 342, 346, 349-350 [2007]). That is, we "must consider the elementsof the crime, for even if the prosecution's witnesses were credible their testimony must prove theelements of the crime beyond a reasonable doubt" (People v Danielson, 9 NY3d at 349).
As County Court charged the jury, "[a] person is guilty of rape in the second degree when. . . being [18] years old or more, he or she engages in sexual intercourse withanother person less than [15] years old" (Penal Law § 130.30 [1]). Here, the victimtestified that defendant had sexual intercourse with him at her apartment in June 2006, and thenagain in July 2006. The victim indicated that on the first instance, defendant was wearing a skirtand T-shirt, and he had his pants pulled down to his knees; on the second occasion, defendantand the victim were both naked. The victim stated that he was embarrassed to tell anyone aboutthe incidents, and that he first told police that he had not had sexual intercourse with defendantand later admitted to having sex with defendant only one time while she was wearing a dress.
Defendant's friend, Lorena Zindle, testified that while she reported to police that she hadwitnessed defendant engaging in sexual intercourse with the victim on one occasion, she hadactually witnessed two incidents. Zindle's description of the incidents was consistent with thevictim's testimony in all significant respects, and she explained the contradiction with her priorstatement to police by stating that she remembered the second occasion only after the policeinterviewed her, but was not sure what to do with that information. Viewing the evidence in aneutral light and according deference to the jury's "opportunity to view the witnesses, hear thetestimony and observe demeanor" (People v Bleakley, 69 NY2d at 495), we conclude thatthe verdict is not against the weight of the evidence (see People v Pomales, 49 AD3d 962, 963 [2008], lv denied10 NY3d 938 [2008]; People vKittles, 23 AD3d 775, 776 [2005], lvs denied 6 NY3d 755 [2005], 7 NY3d791[2006]; People v Cobenais, 301 AD2d 958, 958-961 [2003], lv denied 99NY2d 653 [2003]).
We are similarly unpersuaded by defendant's argument that County Court abused itsdiscretion in denying her CPL 330.30 motion to set aside the verdict based upon newlydiscovered evidence, i.e., a letter and affidavit from defendant's boyfriend, David Bidwell,recanting his prior statements to police alleging sexual contact between defendant and the victim.Bidwell also stated that he had instructed Zindle to testify falsely against defendant. Inasmuch asthe newly discovered evidence tends only to impeach Zindle's testimony, it cannot be said thatCounty Court abused its discretion in denying defendant's motion (see People v McBean, 32 AD3d549, 552 [2006], lv denied 7 NY3d 927 [2006]; People v Bowers, 4 AD3d 558, 560 [2004], lv denied 2NY3d 796 [2004]; People v Hayes, 295 AD2d 751, 752 [2002], lv denied 98NY2d 730 [2002]).
We have considered defendant's remaining contentions and conclude that they are lacking inmerit.
Spain, Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.