PEOPLE v. NEILL (2019)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a nonjury verdict of attempted criminal sexual act in the third degree (Penal Law §§ 110.00, 130.40[3] ).  Defendant waived his challenge to the legal sufficiency of the evidence by consenting to the submission of attempted criminal sexual act in the third degree as a lesser included offense of attempted criminal sexual act in the first degree (see CPL 300.50[1], [6]; see also People v. Daniels, 75 A.D.3d 1169, 1170, 904 N.Y.S.2d 859 [4th Dept. 2010], lv denied 15 N.Y.3d 892, 912 N.Y.S.2d 581, 938 N.E.2d 1016 [2010]; People v. McDuffie, 46 A.D.3d 1385, 1386, 847 N.Y.S.2d 808 [4th Dept. 2007], lv denied 10 N.Y.3d 867, 860 N.Y.S.2d 493, 890 N.E.2d 256 [2008] ).  “Defendant ought not be allowed to take the benefit of the favorable charge and complain about it on appeal” (McDuffie, 46 A.D.3d at 1386, 847 N.Y.S.2d 808 [internal quotation marks omitted] ).  Nonetheless, “ ‘we necessarily review the evidence adduced as to each of the elements of the crime[ ] in the context of our review of defendant's challenge regarding the weight of the evidence’ ” (People v. Stepney, 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv. denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012]; see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

Viewing the evidence in light of the elements of the crime in this nonjury trial (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that, although an acquittal would not have been unreasonable, it cannot be said that County Court failed to give the evidence the weight it should be accorded (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).  “ ‘In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference’ ” (People v. McCoy, 100 A.D.3d 1422, 1422, 953 N.Y.S.2d 788 [4th Dept. 2012] ).  Here, while there were some inconsistencies in the victim's testimony, we conclude that “[t]he victim's testimony was not ‘so inconsistent or unbelievable as to render it incredible as a matter of law’ ” (People v. Lewis, 129 A.D.3d 1546, 1548, 12 N.Y.S.3d 678 [4th Dept. 2015], lv denied 26 N.Y.3d 969, 18 N.Y.S.3d 605, 40 N.E.3d 583 [2015]; see People v. Simonetta, 94 A.D.3d 1242, 1244, 942 N.Y.S.2d 270 [3d Dept. 2012], lv denied 19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114 [2012] ), and that there is no basis for disturbing the court's credibility determinations in this case.  Although the court acquitted defendant of the charges in the indictment involving the element of forcible compulsion and the other charges submitted as lesser included offenses involving anal sexual conduct and sexual intercourse, thereby reflecting the court's uncertainty concerning much of the victim's testimony with respect to defendant's conduct and the nature of the encounter, the court was entitled to credit parts of the victim's testimony while rejecting other parts (see People v. Toft, 156 A.D.3d 1234, 1235, 68 N.Y.S.3d 217 [3d Dept. 2017]; People v. Jemes, 132 A.D.3d 1361, 1362, 17 N.Y.S.3d 539 [4th Dept. 2015], lv denied 26 N.Y.3d 1110, 26 N.Y.S.3d 768, 47 N.E.3d 98 [2016]; Simonetta, 94 A.D.3d at 1244, 942 N.Y.S.2d 270; People v. Kalen, 68 A.D.3d 1666, 1667, 890 N.Y.S.2d 877 [4th Dept. 2009], lv denied 14 N.Y.3d 842, 901 N.Y.S.2d 148, 927 N.E.2d 569 [2010] ).  Based on the weight of the credible evidence adduced at trial, including the victim's testimony that defendant kept asking her to perform oral sex on him, that she kept saying “no” and begging him to stop but defendant would not listen to her, and that defendant's penis touched her jaw, we conclude that the court was justified in finding beyond a reasonable doubt that, during some form of sexual encounter between defendant and the victim, defendant attempted to engage in oral sexual conduct with the victim without her consent (see Penal Law §§ 110.00, 130.40[3]; see generally People v. Newton, 8 N.Y.3d 460, 463–464, 835 N.Y.S.2d 546, 867 N.E.2d 397 [2007]; People v. Evans, 79 A.D.3d 454, 454, 913 N.Y.S.2d 41 [1st Dept. 2010], lv denied 17 N.Y.3d 795, 929 N.Y.S.2d 103, 952 N.E.2d 1098 [2011] ).  We reject defendant's speculative contention that the court considered an inculpatory statement made by him to a detective that had been suppressed prior to trial inasmuch as, “[i]n this nonjury case, the court is presumed to have considered only competent evidence in reaching the verdict ․, and there is no basis in this record to conclude that the court did otherwise” (People v. Clinkscales, 277 A.D.2d 930, 931, 716 N.Y.S.2d 260 [4th Dept. 2000], lv denied 96 N.Y.2d 733, 722 N.Y.S.2d 800, 745 N.E.2d 1023 [2001]; cf. People v. Memon, 145 A.D.3d 1492, 1493, 44 N.Y.S.3d 285 [4th Dept. 2016] ).