| People v Lopez-Aguilar |
| 2009 NY Slip Op 05914 [64 AD3d 1037] |
| July 23, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v IsraelLopez-Aguilar, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered August 11, 2006, upon a verdict convicting defendant of the crimes of rape in thefirst degree and sexual abuse in the first degree.
Following a jury trial, defendant was convicted of rape in the first degree and sexual abuse inthe first degree as charged in counts one and three of a four-count indictment. He was sentencedto maximum concurrent prison terms of 25 years and seven years, respectively, followed by fiveyears of postrelease supervision.
Initially, defendant contends that the verdict is against the weight of the evidence. When adifferent verdict based upon the proof would not be unreasonable, we "must weigh conflictingtestimony, review any rational inferences that may be drawn from the evidence and evaluate thestrength of such conclusions" (People vDanielson, 9 NY3d 342, 348 [2007]; see People v Bleakley, 69 NY2d 490, 495[1987]). In reviewing the evidence, we accord great deference to the jury's credibilitydeterminations given its opportunity to hear the testimony and observe the witnesses' demeanor(see People v Bleakley, 69 NY2d at 495).
Here, the victim, a 63-year-old woman, testified that on the night of the alleged incidents the34-year-old defendant, who was living in the basement of her home, came upstairs [*2]to obtain some beer. When the victim objected, defendant pushedher towards the basement and began pulling her down the stairs. He then blocked her fromleaving, pulled off her pants and "pressed [her] down on the floor." The victim stated thatdefendant, who was then naked, began fondling her and penetrated her vagina with his penis.According to the victim, during the struggle she scratched defendant's back and stomach. Thevictim then testified that defendant later came upstairs, held her down, pressing on her rightbreast, and again fondled her and penetrated her vagina.
The registered nurse who assisted in the treatment of the victim at the hospital testified thatthe examination revealed multiple small tears in the vaginal mucosa, vaginal bruising, bloodyfluid and redness, as well as tenderness under the victim's right breast. Furthermore, a forensicscientist testified that the fingernail scrapings collected from the victim during that medicalexamination contained a significant amount of defendant's DNA.
Although defendant offered different versions of what occurred, testifying that the sexualencounter was consensual, the conflicting testimony presented credibility issues for the jury toresolve (see People v Rosa, 57AD3d 1018, 1019 [2008], lv denied 12 NY3d 762 [2009]). Furthermore, contrary todefendant's contention, we discern nothing in the testimony and evidence presented that wouldrender the victim's testimony incredible as a matter of law (see People v Miles, 61 AD3d 1118, 1119 [2009]; People v Campbell, 17 AD3d 925,926 [2005], lv denied 5 NY3d 760 [2005]). Viewing the evidence in a neutral light andconsidering the elements of the charged crimes, we conclude that the verdict is supported by theweight of the evidence (see People v Bleakley, 69 NY2d at 495).
Defendant's contention that he was denied the effective assistance of counsel is also withoutmerit. Viewed in totality at the time of representation, the record demonstrates that defendantreceived meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998];People v Chatham, 55 AD3d1045, 1046-1047 [2008]).
Finally, there is no basis for defendant's contention that the sentence imposed is punishmentfor asserting his right to trial and, under the circumstances herein, we are unpersuaded that thesentence imposed was harsh and excessive.
Spain, Rose, Kane and Garry, JJ., concur. Ordered that the judgment is affirmed.