| People v Mais |
| 2015 NY Slip Op 08195 [133 AD3d 687] |
| November 12, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Donovan Mais, Appellant. |
Mark Diamond, New York, N.Y., for appellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County(Nelson, J.), rendered November 24, 2010, convicting him of burglary in the seconddegree, attempted rape in the first degree, and attempted robbery in the third degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction ofattempted rape in the first degree under count two of the indictment, vacating thesentence imposed thereon, and dismissing that count of the indictment; as so modified,the judgment is affirmed.
Contrary to the People's contention, the defendant's challenge to the legal sufficiencyof the evidence supporting his conviction of attempted rape in the first degree ispreserved for appellate review. His argument in support of his trial motion of dismissalwas sufficiently specific to alert the court to his position (see CPL 470.05 [2]; People v Alke, 90 AD3d943, 944 [2011]; People vDemolaire, 55 AD3d 621, 621 [2008]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally insufficient to establish thedefendant's guilt of attempted rape in the first degree beyond a reasonable doubt. Thecomplainant testified that she was sleeping in her bedroom when she awakened to findthe defendant, who had entered her house through a window, standing in her bedroom.He initially demanded money from her. After she told him twice that she had none, heyelled at her "take your clothes off." He then walked around the left side of the bedtowards her, again yelled "take your clothes off," and pulled back her bed covers. Afterhe pulled down the covers, she began screaming and he turned and ran out. There was noevidence that the defendant touched the complainant or that he made a verbal demand tohave sexual intercourse with her. Additionally, there was no evidence that the defendantundressed or that any of the complainant's clothes were removed.
Although it could be reasonably inferred from the evidence adduced at trial that thedefendant intended to engage in some type of criminal sexual conduct, it cannot beinferred that he attempted to engage in sexual intercourse by forcible compulsionpursuant to Penal Law § 130.35 (1) (see People v Small, 74 AD3d 843, 844 [2010]; cf. People v Clyde, 18 NY3d145 [2011]; People v Pereau, 64 NY2d 1055 [1985]; People v Jackson, 11 AD3d369 [2004]; People v Lyons, 197 AD2d 708 [1993]). Accordingly, theconviction of attempted rape in the first degree and the sentence imposed thereon mustbe vacated, and that count of the indictment must be dismissed.
[*2] The defendant's contention that the identificationevidence was legally insufficient to support his convictions of burglary in the seconddegree and attempted robbery in the third degree is unpreserved for appellate review(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Pitre, 108 AD3d643, 643 [2013]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt of those crimes beyond a reasonabledoubt. Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord, we are satisfied that the verdict of guilt as to those crimes was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention that certain comments made by the prosecutor duringsummation deprived him of a fair trial is unpreserved for appellate review, as defensecounsel either did not object to the challenged remarks or made only general objections(see CPL 470.05 [2]; People v Alvarado, 126 AD3d 803, 805 [2015]; People v Taylor, 120 AD3d519, 520 [2014]). In any event, the challenged summation remarks were faircomment on the evidence, constituted a fair response to defense counsel's summation, orotherwise do not warrant a reversal (see People v Galloway, 54 NY2d 396, 399[1981]; People v Johnson,127 AD3d 785, 786 [2015]; People v Harris, 117 AD3d 847, 859 [2014], affd26 NY3d 1 [2015]).
The defendant's contention that the sentencing court imposed sentence based uponconsideration of improper factors is unpreserved for appellate review (see CPL470.05 [2]; People v Aviles,87 AD3d 547, 548 [2011]; People v Garson, 69 AD3d 650, 652 [2010]). In any event,this contention is without merit (see People v Morgan, 27 AD3d 579, 580 [2006];People v Robinson, 250 AD2d 629, 629 [1998]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Leventhal, J.P., Cohen, Duffy and LaSalle, JJ., concur.