THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DEMETRIUS GOREE DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of rape in the first degree and dismissing count 1 of the indictment and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the first degree (Penal Law former § 130.35 [1]), sexual abuse in the first degree (§ 130.65 [1]), and predatory sexual assault (former § 130.95 [3]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Specifically, with respect to each count, we conclude that there is ample evidence in the trial record that defendant used forcible compulsion (see Penal Law § 130.00 [8]; People v Carlson, 184 AD3d 1139, 1140 [4th Dept 2020], lv denied 35 NY3d 1064 [2020]).

Further, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495). Although a different verdict would not have been unreasonable, we cannot conclude that the jury “failed to give the evidence the weight it should be accorded” (id.). To the extent that there were inconsistencies between the victim's trial testimony and grand jury testimony, we conclude that the victim's trial testimony “was not ‘so inconsistent or unbelievable as to render it incredible as a matter of law’ ” (People v Heffernan, 247 AD3d 1644, 1646 [4th Dept 2026]; see People v Black, 38 AD3d 1283, 1285 [4th Dept 2007], lv denied 8 NY3d 982 [2007]) and there is no basis on the record before us to disturb the jury's resolution of credibility issues (see generally Bleakley, 69 NY2d at 495).

By accepting County Court's proposed jury charge and failing to object to the charge as given, defendant failed to preserve his contention that the court's charge on count 3 was improper (see People v Spencer, 185 AD3d 1440, 1441 [4th Dept 2020]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Defendant contends that his counsel was ineffective by not raising a challenge for cause to a juror who said during jury selection that family members had been rape victims. We reject that contention, inasmuch as defendant “failed to demonstrate the absence of strategic or other legitimate explanations” for not challenging that juror (People v Ortega, 233 AD3d 1526, 1528 [4th Dept 2024], lv denied 43 NY3d 946 [2025]). To the extent that defendant asserts that defense counsel was ineffective for failing to move for a mistrial when defense counsel learned that a prospective juror had accessed defendant's SORA profile and may have communicated his findings to jury members, that “contention concerns matters outside the record on appeal and must therefore be raised by way of a motion pursuant to CPL article 440” (People v Johnson, 229 AD3d 1300, 1303 [4th Dept 2024], lv denied 42 NY3d 1020 [2024]). We also reject defendant's contention that defense counsel was ineffective for failing to move that several jurors be replaced as grossly unqualified near the end of the trial, after they reported that defendant's family members briefly attempted to communicate with them during a lunch break, inasmuch as it is well settled that “[a] defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success” (People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]).

Contrary to defendant's further contention, his sentence is not unduly harsh or severe.

However, as defendant contends, and the People correctly concede, “rape in the first degree is an inclusory concurrent count of predatory sexual assault,” and thus we modify the judgment by reversing that part of the judgment convicting defendant of rape in the first degree and dismissing count 1 of the indictment (People v Baez, 175 AD3d 982, 984-985 [4th Dept 2019], lv denied 34 NY3d 1015 [2019]; see People v Russell, 71 AD3d 1589, 1590 [4th Dept 2010], lv denied 15 NY3d 756 [2010]; see generally CPL 300.40 [3] [b]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court