| People v Bumbray |
| 2009 NY Slip Op 04277 [63 AD3d 412] |
| June 2, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Daniel Bumbray, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Ellen Stanfield Friedman of counsel),for respondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered February26, 2004, convicting defendant, after a jury trial, of rape in the first degree and sexual abuse inthe first degree, and sentencing him, as a persistent violent felony offender, to an aggregate termof 25 years to life, unanimously affirmed.
Defendant's challenge to the sufficiency of the evidence is unpreserved and we decline toreview it in the interest of justice. As an alternative holding, we find that the verdict was basedon legally sufficient evidence. We also find that the verdict was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning credibility. The victim's testimony clearly established the element of penetration.
Defendant's claim of prosecutorial misconduct is unreviewable on direct appeal because itrelates to matters outside the record, which defendant has not sought to expand by way of a CPL440.10 motion. Defendant's remaining contention is unpreserved and we decline to review it inthe interest of justice. As an alternative holding, we also reject it on the merits.Concur—Mazzarelli, J.P., Andrias, Friedman, Renwick and Freedman, JJ.