People v Rodriguez

2009 NY Slip Op 03755 [62 AD3d 728]

May 5, 2009

Appellate Division, Second Department

As corrected through Wednesday, July 1, 2009

The People of the State of New York,Respondent, v Rafael Rodriguez, Appellant.

—[*1]James D. Licata, New City, N.Y. (Lois Cappelletti of counsel), for appellant.

Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger and Robert H. Trudellof counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Bartlett,J.) rendered September 18, 2007, convicting him of attempted rape in the first degree, sexualabuse in the first degree (two counts), and unlawful imprisonment in the second degree (twocounts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant alleges that the counts of the indictment charging him with sexual abuse inthe first degree (Penal Law § 130.65 [1]) are jurisdictionally defective because they failedto assert the specific facts of the conduct alleged to have violated that provision. However, thosecounts of the indictment cited the applicable sections of the Penal Law and sufficiently trackedthe language thereof to afford the defendant fair notice of the charge against him and, thus, werenot jurisdictionally defective (see CPL 200.50 [7] [a]; People v Dudley, 289AD2d 503 [2001]).

The defendant's contention that the trial court did not adequately respond to jury notesrequesting clarification is unpreserved for appellate review and, in any event, is without merit(see CPL 470.05 [2]; People vLeon, 48 AD3d 701 [2008]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 [*2]NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Upon our independentreview pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).

The sentence imposed was not excessive (see Penal Law § 70.02; People v Adams, 55 AD3d 616[2008]; People v Suitte, 90 AD2d 80 [1982]).

The defendant's remaining contentions are without merit. Mastro, J.P., Covello, Balkin andAustin, JJ., concur.