PEOPLE v. WHITE

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Michael WHITE, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, FAHEY, AND PINE, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas T. Texido of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of Counsel), for Respondent.

Defendant appeals from a judgment convicting him, following a bench trial, of rape in the first degree (Penal Law § 130.35[1] ) and sexual abuse in the first degree (§ 130.65[1] ).   Defendant failed to preserve for our review his contention that he did not knowingly, voluntarily and intelligently waive the right to a jury trial inasmuch as he did not challenge the adequacy of his allocution with respect to the waiver (see People v. Lumpkins, 11 A.D.3d 563, 782 N.Y.S.2d 804, lv. denied 4 N.Y.3d 746, 790 N.Y.S.2d 658, 824 N.E.2d 59).   In any event, the record does not support the contention of defendant that he was unaware of the consequences of his waiver (see People v. Butler, 17 A.D.3d 379, 792 N.Y.S.2d 581, lv. denied 5 N.Y.3d 760, 801 N.Y.S.2d 254, 834 N.E.2d 1264), and the record belies defendant's further contention that the waiver was not signed in open court.

Also contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Although the victim's testimony contains inconsistencies, it cannot be said that the victim's version of events was “manifestly untrue, physically impossible, contrary to experience, or self-contradictory” (People v. Stroman, 83 A.D.2d 370, 373, 444 N.Y.S.2d 463 [internal quotation marks omitted];  see People v. Shedrick, 104 A.D.2d 263, 274, 482 N.Y.S.2d 939, affd. 66 N.Y.2d 1015, 499 N.Y.S.2d 388, 489 N.E.2d 1290, rearg. denied 67 N.Y.2d 758, 500 N.Y.S.2d 1028, 490 N.E.2d 1234).   As County Court noted in rendering its verdict, this was “a case of credibility,” and the court's determination in this bench trial to credit the victim's testimony is entitled to great deference (see generally People v. Catlin, 41 A.D.3d 1199, 838 N.Y.S.2d 284).

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

MEMORANDUM: