PEOPLE v. WOODS (2006)

Defendant appeals from a judgment convicting him upon a jury verdict of rape in the first degree (Penal Law § 130.35[4] ), sodomy in the first degree (former § 130.50[4] ), course of sexual conduct against a child in the first degree (§ 130.75[1][b] ), and criminal impersonation in the second degree (§ 190.25[1] ).   As the People concede, the evidence is legally insufficient to support the conviction of criminal impersonation (see People v. Sadiq, 236 A.D.2d 638, 639, 654 N.Y.S.2d 35, lv. denied 89 N.Y.2d 1100, 660 N.Y.S.2d 394, 682 N.E.2d 995;  People v. Nuhibian, 201 A.D.2d 962, 607 N.Y.S.2d 994, lv. denied 83 N.Y.2d 856, 612 N.Y.S.2d 388, 634 N.E.2d 989;  People v. Powell, 59 A.D.2d 950, 399 N.Y.S.2d 477).   Although defendant failed to preserve his contention for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), we exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ), particularly in view of the People's concession (see People v. Butler, 273 A.D.2d 613, 614-615, 711 N.Y.S.2d 525, lv. denied 95 N.Y.2d 933, 721 N.Y.S.2d 609, 744 N.E.2d 145), and we modify the judgment accordingly.

We reject defendant's contention that the verdict is against the weight of the evidence with respect to the remaining counts (see People v. Bush, 14 A.D.3d 804, 804-805, 788 N.Y.S.2d 258, lv. denied 4 N.Y.3d 852, 797 N.Y.S.2d 426, 830 N.E.2d 325;  People v. Urrutia, 2 A.D.3d 1475, 770 N.Y.S.2d 526, lv. denied 2 N.Y.3d 765, 778 N.Y.S.2d 784, 811 N.E.2d 46;  People v. Van Gorder, 281 A.D.2d 944, 722 N.Y.S.2d 844, lv. denied 96 N.Y.2d 908, 730 N.Y.S.2d 807, 756 N.E.2d 95;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Contrary to defendant's contention, nothing in the record suggests that the victim was “so unworthy of belief as to be incredible as a matter of law” or otherwise tends to establish defendant's innocence of those crimes (People v. Allen, 13 A.D.3d 892, 894, 787 N.Y.S.2d 417, lv. denied 4 N.Y.3d 883, 798 N.Y.S.2d 728, 831 N.E.2d 973 [internal quotation marks omitted];  see People v. Wright, 16 A.D.3d 982, 983, 792 N.Y.S.2d 256, lv. denied 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982;  People v. Smith, 16 A.D.3d 1033, 1034, 790 N.Y.S.2d 805), and thus it cannot be said that the jury failed to give the evidence the weight it should be accorded (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, we conclude that 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 modified as a matter of discretion in the interest of justice and on the law by reversing that part convicting defendant of criminal impersonation in the second degree and dismissing count four of the indictment and as modified the judgment is affirmed.

MEMORANDUM: