| People v Soto |
| 2017 NY Slip Op 08397 [155 AD3d 1066] |
| November 29, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Julio Soto, Appellant. |
Del Atwell, East Hampton, NY, for appellant.
Robert Tendy, District Attorney, Carmel, NY (Melissa Lynch of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Putnam County (Reitz, J.),rendered May 5, 2015, convicting him of rape in the first degree, criminal sexual act in the firstdegree, sexual abuse in the first degree (two counts), rape in the third degree, criminal sexual actin the third degree, and forcible touching, upon a jury verdict, and sentencing him to determinateterms of imprisonment of 25 years plus 20 years of postrelease supervision on the conviction ofrape in the first degree, 25 years plus 20 years of postrelease supervision on the conviction ofcriminal sexual act in the first degree, 7 years plus 10 years of postrelease supervision on eachconviction of sexual abuse in the first degree, 4 years plus 10 years of postrelease supervision onthe conviction of rape in the third degree, and 4 years plus 10 years of postrelease supervision onthe conviction of criminal sexual act in the third degree, and a definite term of imprisonment of 1year on the conviction of forcible touching, with the sentences on the convictions of rape in thefirst degree, criminal sexual act in the first degree, and one count of sexual abuse in the firstdegree to run consecutively to each other, and the remaining sentences to run concurrently.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byproviding that the sentence on the conviction of criminal sexual act in the first degree shall runconcurrently with the other sentences; as so modified, the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction of rape in the first degree in unpreserved for appellate review (see People v Hawkins, 11 NY3d484, 492 [2008]). In any event, his contention is without merit. The testimony of thecomplainant that the defendant laid on top of her so that she could not move and forced her toengage in sexual intercourse with him established sexual intercourse by forcible compulsion(see Penal Law §§ 130.35 [1]; 130.00 [8]; People v Hodges,204 AD2d 739 [1994]). Moreover, upon our independent review pursuant to CPL 470.15 (5), weare satisfied that the verdict of guilt of rape in the first degree was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]). While no rape kit or vaginal examination of the complainant wasconducted, the examining doctor explained that such would have been futile at the time thecomplainant presented, three days after the alleged rape. In any event, a lack of physical injuriesas a result of a sexual attack does not necessarily render the verdict against the weight of theevidence (see People v Williams, 259 AD2d 509 [1999]). Moreover, the complainant'stestimony was corroborated by the account of the school counselor to whom she disclosed therape, and the presence of the defendant's semen on her sweat pants.
[*2] The defendant's contention that the examining doctor'sfailure to conduct a vaginal examination on the complainant deprived him of due process isunpreserved for appellate review (see CPL 470.05 [2]). In any event, his contention iswithout merit. The defendant did not show that the police failed to preserve potentially usefulevidence in bad faith (see Arizona v Youngblood, 488 US 51, 58 [1988]).
Contrary to the defendant's contention, the County Court lawfully imposed consecutivesentences of imprisonment on the convictions of rape in the first degree and criminal sexual actin the first degree because they were "separate and distinct acts, notwithstanding that theyoccurred in the course of a continuous incident" (People v Wynn, 35 AD3d 283, 284 [2006]; see Penal Law§ 70.25 [2]; People v Laureano, 87 NY2d 640, 643 [1996]; People v Pena, 126 AD3d 618[2015], affd 28 NY3d 727 [2017]; People v Houston, 73 AD3d 1081 [2010]; People v Rodriguez, 49 AD3d 433,435 [2008]; People v Telford, 134 AD2d 632, 633 [1987]).
The defendant failed to preserve for appellate review his contention that the sentenceimposed improperly penalized him for exercising his right to trial (see People v Hurley,75 NY2d 887, 888 [1990]). In any event, "the fact that the sentence imposed after trial wasgreater than the sentence offered during plea negotiations is not, standing alone, an indicationthat the defendant was punished for exercising his right to trial" (People v Ray, 100 AD3d 933, 934[2012]; see People v Pena, 50 NY2d 400, 411-412 [1980]). In imposing sentence, theCounty Court relied on the appropriate factors, including the nature of the crime, the defendant'sfailure to accept responsibility or show remorse, and the safety of the community (seePenal Law § 70.80 [2]; People v Clark, 129 AD3d 1, 26 [2015], affd 28 NY3d 556[2016]; People v Suitte, 90 AD2d 80, 83-84 [1982]).
However, the sentence imposed was excessive to the extent indicated herein. Mastro, J.P.,Chambers, LaSalle and Brathwaite Nelson, JJ., concur.