PEOPLE v. RIVERA (2004)

Judgments, Supreme Court, New York County (Harold Beeler, J.), rendered July 6, 1999, as amended March 14, 2000, convicting defendant, after a jury trial, of rape in the first and third degrees and two counts each of sexual abuse in the first and third degrees, and sentencing him, as a second violent felony offender, to an aggregate term of 10 years to be served consecutively to a term of 1 1/212 to 3 years for a violation of probation, unanimously affirmed.

The verdict was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).   The victim was not too inebriated to perceive and recall what had happened to her, and her testimony was believable, whereas defendant's testimony was impeached.

Defendant did not preserve his challenges to the People's cross-examination of defendant concerning his probationary status and their summation remarks on the same subject, and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the cross-examination was consistent with the court's Sandoval ruling and relevant to defendant's credibility, and that the summation remarks were fair comment on the evidence (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).