| People v Cooper |
| 2010 NY Slip Op 03575 [72 AD3d 1552] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Brian Cooper,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.),rendered August 5, 2008. The judgment convicted defendant, upon a nonjury verdict, of rape inthe third degree and criminal sexual act in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him of rape in the third degree (PenalLaw § 130.25 [3]) and criminal sexual act in the third degree (§ 130.40 [3]),defendant contends that the verdict is against the weight of the evidence. Viewing the evidencein light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject thatcontention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Supreme Courtwas entitled to credit the testimony of the victim that defendant forced her to have sexual contactwith him over the testimony of defendant that the sexual contact was consensual. The testimonyof the victim was corroborated by that of her cousin and defendant's cousin, who testified thatthey overheard defendant make incriminating statements during a telephone conversation withthe victim shortly after incidents occurred. Although a different result would not have beenunreasonable, we accord great deference to the credibility determinations of the court, which wasable to view the witnesses and observe their demeanor, and it cannot be said that the court failedto give the evidence the weight it should be accorded (see generally id.).
We also reject the further contention of defendant that the court erred in denying his pro sepost-trial motion for reassignment of counsel without appointing new counsel. In our view, itcannot be said in the context of that motion that defense counsel "took a position that wasadverse to that of defendant and became a witness against him" (People v Chaney, 294AD2d 931, 932 [2002]; see People vHutchinson, 57 AD3d 1013, 1014-1015 [2008], lv denied 12 NY3d 817 [2009]).Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Centra, Lindley,Sconiers and Pine, JJ.