| People v Bieganowski |
| 2013 NY Slip Op 01940 [104 AD3d 1276] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRobert P. Bieganowski, Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego (Courtney E. Pettit of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered September 19, 2011. The judgment convicted defendant, upon a jury verdict, ofrape in the second degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofrape in the second degree (Penal Law § 130.30 [1] [statutory rape]) andendangering the welfare of a child (§ 260.10 [1]), defendant contends that theverdict is against the weight of the evidence. We reject that contention. The indictmentalleged that defendant had sexual intercourse with his 13-year-old niece when she andher brother were visiting his residence on Easter Sunday in 2009. Defendant was 42years old at the time. Approximately one year after the incident occurred, the victim tolda counselor at youth camp what had happened, and the police were then notified. At trial,the victim testified that defendant threw her on the bed and forced himself on her whileshe screamed for defendant to stop and attempted to fight him off. According to thevictim, defendant "reeked" of beer and staggered out of the bedroom after raping her.Defendant's sister testified that the victim, her daughter, had a good relationship withdefendant prior to Easter 2009, but had not been to his residence since that time. Thephysician who examined the victim testified that her hymen had been torn, and the victimtestified that she was a virgin when she was raped by defendant. Defendant took thestand in his own defense, testifying that he had no recollection of what happened on thenight in question because he was highly intoxicated from a combination of alcohol andmedication. Defendant nevertheless denied having attacked the victim, testifying that henever laid a hand on her.
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The jurycredited the testimony of the victim over that of defendant, and the victim's testimonywas not incredible as a matter of law, i.e., it was not " 'impossible of belief because it[was] manifestly untrue, physically impossible, contrary to experience, orself-contradictory' " (People v Garafolo, 44 AD2d 86, 88 [1974]; see People v Rumph, 93 AD3d1346, 1347 [2012], lv denied 19 NY3d 967 [2012]). Although the victim didnot immediately report the crime and [*2]waitedapproximately one year before reporting it, she explained the reason for her delay at trial,thus presenting "a credibility issue for the jury to resolve" (People v Reynolds, 81 AD3d1166, 1167 [2011], lv denied 16 NY3d 898 [2011]; see People v Gathers, 47 AD3d959, 960-961 [2008], lv denied 10 NY3d 863 [2008]).
We reject defendant's further contention that County Court considered unreliableevidence in determining the sentence, i.e., that defendant gave the victim herpes. " 'Asidefrom parameters of punishment defined by the statute which defines the offense, the onlyreal limit to the court's discretion in imposing sentence is the defendant's right to besentenced on reliable and accurate information' " (People v Warren, 100 AD3d 1399, 1403 [2012]; see People v Travers, 95 AD3d1239, 1240 [2012]; see generally People v Outley, 80 NY2d 702, 712[1993]). "This right, in turn, is protected by the procedural right to a reasonableopportunity to refute the aggravating factors which might have negatively influenced thecourt" (Warren, 100 AD3d at 1403 [internal quotation marks omitted]).
Here, defendant had ample notice prior to sentencing that the victim claimed thatdefendant gave her herpes and thus could have obtained medical evidence to refute thevictim's allegation. The preplea investigation report twice mentioned that the victim hadcontracted herpes from defendant, and that report was provided to defendant beforesentencing. Nor did defendant request an adjournment to attempt to procure suchevidence. It was thus for the court "to consider defendant's arguments and to evaluate theinformation contained in the [presentence] report[s] in determining the appropriatesentence" (People vBatthany, 27 AD3d 837, 838 [2006]).
Finally, we reject defendant's contention that the sentence is unduly harsh and severe,given that the court sentenced defendant to four years in prison, three years less than themaximum punishment allowed, and considering the nature of the offense. We thereforeperceive no basis to modify the sentence as a matter of discretion in the interest ofjustice. Present—Scudder, P.J., Centra, Lindley, Sconiers and Martoche, JJ.