PEOPLE v. XAVIER (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Craig Stephen Brown, J.), rendered September 6, 2022, convicting him of rape in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of rape in the third degree (Penal Law former § 130.25[3]) beyond a reasonable doubt.  From the evidence presented, a jury could logically conclude that the victim, by her words and actions, clearly expressed her unwillingness to engage in sexual intercourse, in such a way that a neutral observer would have understood that she was not consenting to sexual intercourse with the defendant (see Penal Law § 130.05[2][d];  People v. Smith, 174 A.D.3d 825, 826, 106 N.Y.S.3d 318;  People v. Powell, 128 A.D.3d 1174, 1176, 9 N.Y.S.3d 452;  People v. Evans, 79 A.D.3d 454, 913 N.Y.S.2d 41).  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt as to rape in the third degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the defendant's contention, the County Court gave a meaningful response to the jury's written request during deliberations for a read back of certain testimony from the victim.  Although the court directed a read back of testimony that was somewhat broader than the jury's request as expressly stated, the additional information was consistent with the jury's request and provided a complete answer to the jury's inquiry (see People v. Grant, 127 A.D.3d 990, 991, 6 N.Y.S.3d 648;  People v. Garcia, 56 A.D.3d 271, 272, 866 N.Y.S.2d 667;  People v. Perez, 15 A.D.3d 284, 284–285, 789 N.Y.S.2d 496).  Furthermore, the defendant was not prejudiced by the additional portions of the read back (see People v. Grant, 127 A.D.3d at 991, 6 N.Y.S.3d 648;  People v. Perez, 15 A.D.3d at 284–285, 789 N.Y.S.2d 496).

The sentence imposed was not excessive (see People v. Brisman, 43 N.Y.3d 322, 235 N.Y.S.3d 248, 262 N.E.3d 249;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

IANNACCI, J.P., BRATHWAITE NELSON, DOWLING and GOLIA, JJ., concur.