| People v Secor |
| 2018 NY Slip Op 04793 [162 AD3d 1411] |
| June 28, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v David Secor, Appellant. |
Paul J. Connolly, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Devine, J. Appeal from a judgment of the Supreme Court (McDonough, J.), renderedSeptember 2, 2016 in Albany County, upon a verdict convicting defendant of the crime of rape inthe third degree.
Defendant, who was 26 years old, allegedly had sexual intercourse with a 16-year-old girl inOctober 2015. He was indicted on one count of rape in the third degree and, following a jurytrial, was found guilty as charged. Supreme Court sentenced defendant, a second felony offender,to a prison term of two years to be followed by postrelease supervision of 12 years. Defendantnow appeals.
We affirm. Defendant's general motion to dismiss at the close of proof did not preserve hispresent challenge to the legal sufficiency of the evidence (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Cruz, 152 AD3d 822,823 [2017], lv denied 30 NY3d 1018 [2017]). Nevertheless, whether the elements of theoffense were proven beyond a reasonable doubt will be evaluated in the context of reviewingdefendant's contention that the verdict is against the weight of the evidence (see People v Miller, 160 AD3d1040, 1041 [2018]; People vYoung, 152 AD3d 981, 981 [2017], lv denied 30 NY3d 955 [2017]). The Peoplewere obliged to show here that defendant, "[b]eing [21] years old or more, . . .engage[d] in sexual intercourse with another person less than [17] years old" (Penal Law§ 130.25 [2]; see Penal Law § 130.00 [1]).
In that regard, the ages of defendant and the victim were established at trial. The victimtestified as to how she was friendly with defendant and had spent time with him on a fewoccasions. She further related how, on the day of the incident, she asked defendant to pick her upafter school and the two ended up in a secluded parking lot. They then moved to the back seat ofthe car, where they partially disrobed, defendant rolled on a condom, the victim mounted him andthey had sex for several minutes. The victim's testimony was largely confirmed by that of apolice officer who interrupted the couple while conducting a property check and observed thevictim, her dress hiked up, straddling a half-nude defendant in the back seat of the vehicle. Aused condom was also in plain view and, while no seminal fluid or sperm was found on it,genetic material was recovered that DNA testing matched to the victim and a male. Defendantand those in his paternal line could not be excluded as the source of the male DNA, a state ofaffairs true for only one out of every 1,786 men.
Defendant noted the absence of seminal fluid or sperm on the condom and argued that thevictim was lying about the penetration needed for sexual intercourse (see Penal Law§ 130.00 [1]). The jury nevertheless credited the victim's testimony, which wascorroborated in important points by other evidence and was not, contrary to defendant'ssuggestion, incredible as a matter of law (see People v Wright, 155 AD3d 1452, 1454 [2017], lvdenied 30 NY3d 1121 [2018]; People v Blond, 96 AD3d 1149, 1152 [2012], lv denied 19NY3d 1101 [2012]). To the extent that a different verdict was a reasonable possibility, "[a]fterreviewing the proof in the record and finding no reason to disregard the jury's credibilitydeterminations, we are unpersuaded that the verdict was against the weight of the evidence" (People v Tubbs, 115 AD3d 1009,1010 [2014]; see People v Romero,7 NY3d 633, 643 [2006]; People vPeart, 141 AD3d 939, 941 [2016], lv denied 28 NY3d 1074 [2016]).
Defendant next alleges the existence of unspecified defects in the grand jury proceeding.Inasmuch as the verdict was not against the weight of the evidence, it "was necessarily foundedupon legally sufficient evidence," and, as a result, "defendant's challenges to the grand juryproceeding are precluded to the extent they involve the sufficiency of the evidence presented orthe instructions given to the grand jury" (People v Gaston, 147 AD3d 1219, 1220 n 2 [2017]; seeCPL 210.30 [6]; People v Robinson,156 AD3d 1123, 1128 n 8 [2017], lv denied 30 NY3d 1119 [2018]). Our review ofthe grand jury minutes does not reveal any other flaw in the proceeding that would "warrant theexceptional remedy of reversal" (People v Robinson, 156 AD3d at 1128 n 8; see People v Wisdom, 23 NY3d970, 972 [2014]).
Lastly, defendant was sentenced to the minimum prison term permitted for an individual inhis position (see Penal Law § 70.80 [1] [c]; [5] [b] [iv]), and we cannot saythat the term of postrelease supervision imposed was in any way harsh or excessive.
McCarthy, J.P., Egan Jr., Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.