PEOPLE v. BAKER (2006)

Defendant appeals from a judgment convicting him after a jury trial of sodomy in the first degree (Penal Law former § 130.50[4] ), sexual abuse in the first degree (§ 130.65[1] ), attempted rape in the first degree (§§ 110.00, 130.35[4] ), and two counts of endangering the welfare of a child (§ 260.10[1] ).   Contrary to defendant's contention, the testimony of the two victims was not so inconsistent as to render that testimony incredible as a matter of law (see People v. Roberts, 231 A.D.2d 859, 648 N.Y.S.2d 418, lv. denied 89 N.Y.2d 1014, 658 N.Y.S.2d 253, 680 N.E.2d 627;  see also People v. Batista, 235 A.D.2d 631, 632, 652 N.Y.S.2d 645, lv. denied 89 N.Y.2d 1088, 660 N.Y.S.2d 382, 682 N.E.2d 983).   In any event, we note that defense counsel highlighted those inconsistencies in his cross-examination of the two victims and on summation and the jury nevertheless credited their testimony, and we afford “deference to the jury's superior ability to evaluate the credibility of the People's witnesses” (People v. Moore, 17 A.D.3d 786, 789, 792 N.Y.S.2d 721, lv. denied 5 N.Y.3d 792, 801 N.Y.S.2d 812, 835 N.E.2d 672).   Consequently, we cannot agree with defendant that, based on the inconsistencies in the testimony of the two victims, the conviction is not supported by legally sufficient evidence and 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).   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: