| People v Jackson |
| 2012 NY Slip Op 08968 [101 AD3d 1685] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Leonard Jackson,Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.), renderedSeptember 25, 2008. The judgment convicted defendant, after a nonjury trial, of rape in the seconddegree and criminal sexual act in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, of rape inthe second degree (Penal Law § 130.30 [1]) and criminal sexual act in the second degree(§ 130.45 [1]), and acquitting him of rape in the first degree (§ 130.35 [1]). Viewing theevidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Although Supreme Court rejected the victim's testimonythat the acts of anal and vaginal intercourse were forced, the court "was entitled to 'accept some of thevictim['s] testimony while rejecting other portions of it' " (People v Simonetta, 94 AD3d 1242, 1244 [2012], lv denied 19NY3d 1029 [2012]), and thus the court was justified in finding, beyond a reasonable doubt, thatdefendant engaged in anal and vaginal intercourse with the 13-year-old victim (see Danielson, 9NY3d at 348).
We also conclude that defendant's sentence is not unduly harsh or severe based on the court'simposition of consecutive sentences. Where "the crimes are committed through separate and distinctacts, even though part of a single transaction, consecutive sentences are possible regardless of whetherthe statutory elements of the offenses overlap" (People v Salcedo, 92 NY2d 1019, 1021[1998]; see People v Hurlbert, 81 AD3d1430, 1432 [2011], lv denied 16 NY3d 896 [2011]). Here, as noted, defendant engagedin the separate and distinct acts of vaginal and anal intercourse with the victim.Present—Scudder, P.J., Centra, Fahey, Carni and Valentino, JJ.