PEOPLE v. VOYMAS (2007)

 On appeal from a judgment convicting him following a jury trial of, inter alia, rape in the first degree (Penal Law § 130.35[1] ), defendant contends that the evidence of forcible compulsion is legally insufficient to support the conviction of rape.   We reject that contention.   In reviewing the evidence of forcible compulsion, we must “ focus ․ on the state of mind produced in the victim by the defendant's conduct” (People v. Thompson, 72 N.Y.2d 410, 416, 534 N.Y.S.2d 132, 530 N.E.2d 839, rearg. denied 73 N.Y.2d 870, 537 N.Y.S.2d 489, 534 N.E.2d 327), “and relevant factors include the age of the victim, the relative size and strength of the defendant and victim, and the nature of the defendant's relationship to the victim” (People v. Sehn, 295 A.D.2d 749, 750, 744 N.Y.S.2d 526, lv. denied 98 N.Y.2d 732, 749 N.Y.S.2d 482, 779 N.E.2d 193).   Thus, the proper inquiry “is not what the defendant would or could have done, ‘but rather what the victim, observing [the defendant's] conduct, feared [he] would or might do if [the victim] did not comply with [his] demands' ” (Thompson, 72 N.Y.2d at 415-416, 534 N.Y.S.2d 132, 530 N.E.2d 839, quoting People v. Coleman, 42 N.Y.2d 500, 505, 399 N.Y.S.2d 185, 369 N.E.2d 742;  see People v. Davis, 21 A.D.3d 590, 591-592, 799 N.Y.S.2d 324).

In this case the victim, defendant's younger sister, testified that defendant and their other brother began to abuse her sexually when she was five years old.   Initially, the victim would try to fight them off but she was not successful because they were older and physically larger than the victim.   With respect to the rape, the victim testified that she pretended to be asleep and tried to keep her legs closed, but defendant pulled them apart.   The victim did not fight harder because she had learned from past experience that, the more she fought, the more she would be hurt.

We thus conclude that “the victim's testimony, coupled with evidence of defendant's forcible compulsion upon [the victim] prior to the date in question, enabled a rational fact finder to conclude that she was subjected to such compulsion on this date as well” (People v. Peraza, 288 A.D.2d 689, 691, 733 N.Y.S.2d 510, lv. denied 97 N.Y.2d 707, 739 N.Y.S.2d 108, 765 N.E.2d 311;  see generally People v. Cook, 93 N.Y.2d 840, 841, 688 N.Y.S.2d 89, 710 N.E.2d 654).

 Defendant further contends that the verdict is against the weight of the evidence because the victim's testimony is not credible.  “Testimony will be deemed incredible only where it is impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory ․, and that is not the case with respect to the victim's testimony” (People v. Ptak, 37 A.D.3d 1081, 828 N.Y.S.2d 825 [internal quotation marks omitted] ).

 We conclude that County Court properly admitted defendant's unsigned statement in evidence.   The record establishes that defendant was given a copy of the statement, that he made numerous corrections to it and that he added a handwritten comment.   We thus conclude that defendant in effect “ acknowledged [the] accuracy” of the statement (People v. DaCosta, 201 A.D.2d 402, 402, 607 N.Y.S.2d 933, lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 131, 635 N.E.2d 300;  see People v. Ramirez, 284 A.D.2d 161, 162, 726 N.Y.S.2d 100, lv. denied 97 N.Y.2d 687, 738 N.Y.S.2d 302, 764 N.E.2d 406;  cf. People v. Lee, 159 A.D.2d 238, 552 N.Y.S.2d 218, lv. denied 76 N.Y.2d 791, 559 N.Y.S.2d 996, 559 N.E.2d 690).   We likewise conclude that the court properly refused to redact certain excerpts from the statement.   Each excerpt constituted relevant evidence (see generally People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808), and the questions of the police detective in the excerpts were “not hearsay because [they were] not offered for [their] truth, but to show defendant's response[s] to the [detective's] words, ․ response[s] that pointed to defendant's consciousness of guilt” (People v. Scott, 203 A.D.2d 911, 911-912, 611 N.Y.S.2d 725, lv. denied 83 N.Y.2d 971, 616 N.Y.S.2d 24, 639 N.E.2d 764).

Defendant failed to preserve for our review his contention that he was penalized for asserting his right to a trial based on the fact that he received a greater sentence after trial than that offered before trial (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017;  People v. Irrizarry, 37 A.D.3d 1082, 829 N.Y.S.2d 351).   In any event, that contention lacks merit (see Irrizarry, 37 A.D.3d 1082, 829 N.Y.S.2d 351;  see also People v. Smith, 21 A.D.3d 1277, 1278, 801 N.Y.S.2d 663, lv. denied 7 N.Y.3d 763, 819 N.Y.S.2d 889, 853 N.E.2d 260;  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).   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: