PEOPLE v. GRAY (2005)

 Defendant appeals from a judgment convicting him after a jury trial of rape in the first degree (Penal Law § 130.35[1] ) and rape in the second degree (§ 130.30[1] ).   Contrary to the contentions of defendant, the evidence is legally sufficient to establish both that he engaged in sexual intercourse with the 13-year-old victim and that he did so by forcible compulsion.   The victim testified that defendant pulled her into the bedroom, pushed her onto the bed, removed her clothing, and placed his penis inside her “personal area” while holding her down.   That testimony is legally sufficient to establish both penetration (see People v. Fuller, 50 N.Y.2d 628, 631, 638-639, 431 N.Y.S.2d 357, 409 N.E.2d 834;  People v. Hatfield, 256 A.D.2d 1105, 684 N.Y.S.2d 801, lv. denied 93 N.Y.2d 853, 688 N.Y.S.2d 501, 710 N.E.2d 1100 93 N.Y.2d 874, 689 N.Y.S.2d 436, 711 N.E.2d 650) and forcible compulsion (see People v. Shelton, 307 A.D.2d 370, 371, 763 N.Y.S.2d 79, affd. 1 N.Y.3d 614, 777 N.Y.S.2d 9, 808 N.E.2d 1268;  People v. Solorzano, 163 A.D.2d 434, 559 N.Y.S.2d 20, lv. denied 76 N.Y.2d 944, 563 N.Y.S.2d 73, 564 N.E.2d 683;  see also People v. Richardson, 284 A.D.2d 920, 728 N.Y.S.2d 605).   Contrary to defendant's further contention, the verdict is not 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 credibility of the victim and the weight to be accorded her testimony were matters for the jury” (People v. Halwig, 288 A.D.2d 949, 949, 732 N.Y.S.2d 208, lv. denied 98 N.Y.2d 710, 749 N.Y.S.2d 8, 778 N.E.2d 559;  see People v. Bell, 234 A.D.2d 915, 915-916, 652 N.Y.S.2d 448, lv. denied 89 N.Y.2d 1009, 658 N.Y.S.2d 247, 680 N.E.2d 621).   We further conclude that defendant was not denied effective assistance of counsel.   The evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  see also People v. Henry, 95 N.Y.2d 563, 565, 721 N.Y.S.2d 577, 744 N.E.2d 112;  People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: