| People v Luckette |
| 2015 NY Slip Op 01834 [126 AD3d 1044] |
| March 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Luckette, Appellant. |
Richard E. Cantwell, Plattsburgh, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Lynch, J. Appeal from a judgment of the County Court of Franklin County (Rogers,J.), rendered December 11, 2012, upon a verdict convicting defendant of the crime ofrape in the first degree.
In June 2011, when the victim was 17 years old, she and a friend went to defendant'sapartment in the Village of Malone, Franklin County, where they drank beer withdefendant and snorted adderall. After some time, the friend left the apartment and thevictim and defendant were alone. When the friend returned later that evening, the victimtold her that defendant had "forced himself on her." The victim went to the police and,thereafter, defendant was indicted on the charge of rape in the first degree. Following ajury trial, defendant was convicted as charged and sentenced to an eight-year prison termto be followed by a 10-year period of postrelease supervision. Defendant now appealsand we affirm.
Defendant contends that the conviction was not supported by legally sufficientevidence. While we find that defendant's legal sufficiency argument was not preservedby his general motion to dismiss at trial (see People v Finger, 95 NY2d 894, 895[2000]; People v Tompkins,107 AD3d 1037, 1038 [2013], lv denied 22 NY3d 1044 [2013]), defendantalso contends that the verdict was against the weight of the evidence. As to this latterchallenge, for which there is no preservation requirement, we necessarily consider andreview the evidence presented as to each element of the crime charged (see People v Danielson, 9NY3d 342, 349 [2007]; People v Tompkins, 107 AD3d at1038).
[*2] As relevant to this appeal, adefendant is guilty of rape in the first degree when he or she engages in sexualintercourse with another person by forcible compulsion (see Penal Law§ 130.35 [1]) and " '[f]orcible compulsion' means to compel by. . . use of physical force" (Penal Law § 130.00 [8] [a]). Attrial, the victim testified that once she was alone with defendant, her body felt "heavy"from the drugs and alcohol. She recalled that defendant grabbed her wrist and pulled herinto a bedroom and that, as she continued to tell him she "didn't want it," defendantpushed her onto the bed, got on top of her, and proceeded to engage in certain sexualcontact, including vaginal intercourse. According to the victim, she continued to protestduring the entire event and tried to push him off her and to get away, but defendant washolding her hands above her head. The police officer who took a statement fromdefendant testified that defendant admitted that the victim had told him to stop, but thathe believed that she did not mean it. Similarly, during his testimony at trial, defendanttestified that he did have vaginal intercourse with the victim, but that the event wasconsensual. He conceded, however, that he had testified before the grand jury that thevictim told him "no."
In our view, while a different result would not have been unreasonable (seePeople v Danielson, 9 NY3d at 348), the evidence at trial was sufficient to establishthe forcible compulsion element of rape in the first degree (see Penal Law§§ 130.35 [1]; 130.00 [8]). Notably, "forcible compulsion is notsynonymous with violence" (People v Peraza, 288 AD2d 689, 691 [2001], lvdenied 97 NY2d 707 [2002]), and it was not necessary for the People to prove thatthe victim suffered lasting physical injury or emotional trauma in order for the jury tofind that defendant committed the crime of rape in the first degree (see id.;People v Cook, 186 AD2d 879, 880 [1992], lv denied 81 NY2d 761[1992]). The conflicting testimony, which was explored during the trial, presentedcredibility issues for the jury to resolve, and we accord great deference to the jury'sopportunity to hear the witnesses and observe their demeanor (see People v Desmond, 118AD3d 1131, 1133 [2014], lv denied 24 NY3d 1002 [2014]; People vJackson, 290 AD2d 644, 646 [2002], lv denied 98 NY2d 711 [2002]). Whenreviewing a challenge to the weight of the evidence, we do not consider what the victimcould or should have done (see People v Jackson, 290 AD2d at 646). We are notpersuaded that it was impossible for defendant to restrain the victim, and it is apparentthat the jury found the victim to be credible. In our view, her testimony was sufficient toestablish proof that defendant forcibly compelled the victim to engage in vaginalintercourse (see People v Tompkins, 107 AD3d at 1039; People v Cook,186 AD2d at 881).
We reject defendant's argument that his sentence should be reduced in the interest ofjustice. Generally, this Court will not reduce a sentence in the interest of justice absentextraordinary circumstances or an abuse of discretion by the trial court (see People vDelgado, 80 NY2d 780, 783 [1992]; People v Gassner, 118 AD3d 1221, 1221-1222 [2014],lv denied 23 NY3d 1062 [2014]). Here, County Court could have imposed asentence of up to 25 years in prison (see Penal Law § 70.02 [2] [a];[3] [a]). Although the court noted at sentencing that defendant held the victim's shouldersduring the event rather than, as stated, her hands, the evidence presented supported thejury's verdict, and we discern no basis to modify the sentence imposed (see People v Lancaster, 121AD3d 1301, 1304 [2014], lv denied 24 NY3d 1121 [2015]; People v Warner, 110 AD3d1339, 1340 [2013], lv denied 22 NY3d 1091 [2014]).
Lahtinen, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.