PEOPLE v. JOHNSON (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted rape in the first degree (Penal Law §§ 110.00, 130.35[1] ) and attempted rape in the second degree (§§ 110.00, 130.30[1] ).   We reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “The testimony of the victim was not so inconsistent or unbelievable as to render it incredible as a matter of law” (People v. Black, 38 A.D.3d 1283, 1285, 832 N.Y.S.2d 375, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661).   Defendant failed to preserve for our review his further contention that the evidence is legally insufficient to support his conviction of the attempted rape counts (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Finally, we reject the contention of defendant that he was punished for exercising his right to trial based on the fact that the sentence imposed after trial was more severe than the one offered pursuant to the proposed plea agreement.   There is no “evidence that defendant was given the lengthier sentence solely as a punishment for exercising his right to a trial” (People v. Morin, 192 A.D.2d 791, 794, 596 N.Y.S.2d 508, lv. denied 81 N.Y.2d 1077, 601 N.Y.S.2d 597, 619 N.E.2d 675;  see People v. Simon, 180 A.D.2d 866, 867, 580 N.Y.S.2d 493, lv. denied 80 N.Y.2d 838, 587 N.Y.S.2d 922, 923, 600 N.E.2d 649, 650;  see generally People v. Pena, 50 N.Y.2d 400, 411-412, 429 N.Y.S.2d 410, 406 N.E.2d 1347, rearg. denied 51 N.Y.2d 770, 432 N.Y.S.2d 1029, 411 N.E.2d 799, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: