| People v Small |
| 2010 NY Slip Op 04823 [74 AD3d 843] |
| June 1, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v David Small, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso and Andrew R.Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.),rendered July 23, 2008, convicting him of burglary in the second degree, attempted rape in thefirst degree, and unlawful imprisonment in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the law, and as a matter of discretion in theinterest of justice, by vacating the conviction of attempted rape in the first degree under counttwo of the indictment, vacating the sentence imposed thereon, and dismissing that count of theindictment; as so modified, the judgment is affirmed.
The defendant contends that his conviction of attempted rape in the first degree is basedupon legally insufficient evidence. Although his contention is unpreserved for appellate review(see People v Kolupa, 13 NY3d786, 787 [2009]; People v Hines, 97 NY2d 56, 61 [2001]), we exercise our power toreview it as a matter of discretion in the interest of justice.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally insufficient to establish thedefendant's guilt beyond a reasonable doubt with respect to the crime of attempted rape in thefirst degree. The complainant testified that after entering her home through a window, thedefendant ushered her into the bedroom, and acquiesced thereafter to her request that she bepermitted to sit on the floor rather than the bed. He then "tried" to kiss her, "tried" to unbuttonher blouse, and told her that she was "hot." According to the complainant, the defendant "didn'tknow what to do." There is no evidence that the defendant undressed at any point. Moreover, thecomplainant did not testify that the defendant tried to rape her.
While it can be inferred from these facts that the defendant intended to engage in some formof nonconsensual sexual contact (see e.g. People v Brown, 251 AD2d 694, 696 [1998]),there was no evidence that he attempted to engage in sexual intercourse by forcible compulsionpursuant to Penal Law § 130.35 (1) (cf. People v Estep, 285 AD2d 726, 727[2001]; People v Jenks, 239 AD2d 673, 674 [1997]; People v Lyons, 197 AD2d708 [1993]; see also People v Brown, 251 AD2d at 694-695). Accordingly, the [*2]conviction of attempted rape in the first degree and the sentenceimposed thereon must be vacated, and that count of the indictment must be dismissed.
The defendant further contends that his conviction of burglary in the second degree must bereversed because the People limited their theory of the burglary prosecution to intent to commitrape, which they failed to prove. This contention is unpreserved for appellate review (see People v Mestres, 41 AD3d618 [2007]; People v Thomas,38 AD3d 1134, 1136 [2007]) and, in any event, is without merit (see People v Ramadhan, 50 AD3d339 [2008]; People v Thomas, 38 AD3d at 1136; People v Williams, 38 AD3d 327,327-328 [2007]).
The defendant's contention that the identification evidence was legally insufficient to supporthis burglary in the second degree and unlawful imprisonment convictions is unpreserved forappellate review (see People v Kolupa, 13 NY3d at 787; People v Lyons, 197AD2d at 708-709). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d at 621), we find that it was legally sufficientto establish the defendant's guilt of those crimes beyond a reasonable doubt (see People v Mills, 20 AD3d 779,780-781 [2005]; People v Sylvester, 247 AD2d 886 [1998]; People v Lyons, 197AD2d at 709). Moreover, upon our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that the County Court erred in admitting into evidence an emptybeer can found near the crime scene is similarly unpreserved for appellate review (see Peoplev Bolster, 298 AD2d 705 [2002]) and, in any event, is without merit (see People vShenouda, 283 AD2d 446 [2001]; People v Boone, 239 AD2d 427, 427-428 [1997]).
The defendant's contention on appeal that his unlawful imprisonment conviction is barred bythe merger doctrine is without merit.
The defendant's Sixth Amendment right to confront witnesses was not violated by theCounty Court's admission into evidence of certain DNA evidence (see People v Brown, 13 NY3d332, 335 [2009]; People vDail, 69 AD3d 873, 874 [2010]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 86[1982]).
The defendant's remaining contentions are without merit. Rivera, J.P., Florio, Miller andAustin, JJ., concur.