| People v Rosa |
| 2008 NY Slip Op 09495 [57 AD3d 1018] |
| December 4, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Victor Rosa,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Jason J. Kovacs of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered October9, 2007 in Ulster County, convicting defendant following a nonjury trial of the crimes of course ofsexual conduct against a child in the second degree and endangering the welfare of a child.
Defendant was charged in a four-count indictment with two counts of course of sexual conductagainst a child in the second degree, endangering the welfare of a child and criminal possession of aweapon in the third degree. The sexual misconduct charges stemmed from defendant's alleged sexualconduct with the victim (born in 1991) between January 1, 1999 and June 30, 2002. Althoughdefendant was initially sentenced to concurrent terms of five years in prison pursuant to his plea of guiltyto one count of course of sexual conduct against a child in the second degree and criminal possession ofa weapon in the third degree, on appeal this Court vacated that plea and remitted the matter (30 AD3d905 [2006], lv denied 7 NY3d 851 [2006]).[FN1]Following a nonjury trial in Supreme Court, defendant was convicted of course of sexual conduct [*2]against a child in the second degree and endangering the welfare of achild.[FN2]He was sentenced, as a second felony offender, to an aggregate prison term of seven years followed bythree years of postrelease supervision.
On this appeal, defendant contends that the verdict was against the weight of the evidence due tothe victim's alleged inconsistent and uncorroborated testimony. Issues of credibility and the weight toaccord testimony are matters to be resolved by the trier of fact, who is free to accept or reject any partof the testimony presented (see People vAlteri, 49 AD3d 918, 920 [2008]; People v Kuykendall, 43 AD3d 493, 495 [2007], lv denied 9NY3d 1007 [2007]). Here, the victim testified that on numerous occasions while defendant residedwith the victim and her family, he would enter her bedroom late at night while her mother was at work,hold her hands above her head and forcibly engage in sexual intercourse. The victim, who did notreport the alleged sexual abuse until a year after it had stopped, testified that defendant threatened toharm her mother and infant brother if she told anyone. The victim's mother testified that while sheworked the night shift defendant often supervised the victim, and the victim's academic performancesuffered inexplicably during that period. Although the sexual assault nurse examiner who examined thevictim was unable to determine whether the observed genital injury was caused by sexual abuse, thenurse reported that her observations and findings of the examination were consistent with the victim'sclaimed history of abuse.
Contrary to defendant's contention, we find nothing incredible about the victim's testimony and findno basis to disturb the credibility assessment of Supreme Court, who was able to hear the victim'stestimony and observe her demeanor (seePeople v Nowinski, 36 AD3d 1082, 1084 [2007], lv denied 8 NY3d 989 [2007]).According deference to those credibility determinations and viewing the evidence in a neutral light, wefind that the verdict was not against the weight of the evidence (see People v Bleakley, 69NY2d 490, 495 [1987]; People vJudkins, 41 AD3d 1046, 1047-1048 [2007], lv denied 9 NY3d 962 [2007]; People v Johnson, 24 AD3d 967, 968[2005], lv denied 6 NY3d 814 [2006]). Furthermore, we find no violation of defendant's rightto confrontation due to testimony from the victim's mother—initially elicited oncross-examination—regarding the victim's declining academic performance during the period inquestion.
Finally, we are unpersuaded by defendant's contention that the sentence imposed by SupremeCourt following the nonjury trial was vindictive simply because that sentence was greater than theagreed-upon sentence imposed upon his initial guilty plea (see People v Miller, 65 NY2d 502,509 [1985], cert denied 474 US 951 [1985]).
Peters, Carpinello, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Upon remittal, defendant againpleaded guilty to course of sexual conduct against a child in the second degree but he withdrew thatplea when it was discovered that the agreed-upon sentence was unlawful.
Footnote 2: The weapon possession charge andfirst count of course of sexual conduct against a child were dismissed.