PEOPLE v. HATFIELD

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

PEOPLE of The State of New York, Respondent, v. Kenneth P. HATFIELD, Appellant.

Decided: December 31, 1998

Present:  DENMAN, P.J., PINE, PIGOTT, Jr., CALLAHAN and BOEHM, JJ. Daniel E. Seaman by Michael Schmahl, Public Defender's Office, Lockport, for Appellant. Matthew J. Murphy, III by Thomas Brandt, District Attorney's Office, Lockport, for Respondent.

 Defendant was convicted following a jury trial of rape in the third degree (Penal Law § 130.25[2] ), sexual abuse in the third degree (Penal Law § 130.55) and three counts of endangering the welfare of a child (Penal Law § 260.10[1] ) for engaging in sexual intercourse with a 16-year-old female.   There is no merit to the contention of defendant that the evidence is legally insufficient to support his conviction of rape in the third degree.   The complainant testified that she had intercourse with defendant around Christmas when he “put [his] penis in [her] vagina”.   That testimony, if believed by the jury, is sufficient as a matter of law to establish the element of penetration (see, People v. Chilson, 133 A.D.2d 931, 932-933, 520 N.Y.S.2d 647, lv. denied 71 N.Y.2d 893, 527 N.Y.S.2d 1003, 523 N.E.2d 310;  see also, Penal Law § 130.00[1] ).

 Because defendant failed to challenge the constitutionality of a prior felony conviction at any time during the second felony offender hearing and failed to show good cause for his failure to make a timely challenge, he waived any allegation of unconstitutionality (see, CPL 400.21[7][b];  People v. Froats, 163 A.D.2d 906, 558 N.Y.S.2d 426, lv. denied 76 N.Y.2d 940, 563 N.Y.S.2d 69, 564 N.E.2d 679).

Judgment unanimously affirmed.

MEMORANDUM: