PEOPLE v. ALFORD

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

The PEOPLE of the State of New York, Respondent, v. Steven ALFORD, Appellant.

Decided: October 25, 2001

Before CREW III, J.P., SPAIN, MUGGLIN, ROSE and LAHTINEN, JJ. David C. Roosa, South New Berlin, for appellant. Richard D. Northrup Jr., District Attorney, Delhi, for respondent.

Appeal from a judgment of the County Court of Delaware County (Estes, J.), rendered September 29, 1997, convicting defendant following a nonjury trial of the crimes of rape in the first degree, rape in the third degree, sexual abuse in the first degree and endangering the welfare of a child.

Defendant was indicted by a Delaware County Grand Jury for the crimes of rape in the first degree, rape in the third degree, sexual abuse in the first degree and endangering the welfare of a child.   The charges stemmed from a November 27, 1996 incident at an apartment in the Village of Walton, Delaware County, in which defendant, then 32 years of age, forced the then 15 year old victim to have sexual intercourse with him.   Convicted of all the charges after a nonjury trial, defendant was sentenced as a persistent felony offender to an indeterminate prison term of 25 years to life on his conviction for rape in the first degree, and concurrent lesser sentences on the other convictions.   Defendant now appeals claiming that the evidence was legally insufficient to support each conviction, that the verdict was against the weight of the evidence and that his sentence was harsh and excessive.

 Defendant initially argues that the evidence presented was legally insufficient to establish his guilt and the verdict was against the weight of the evidence.   We disagree.   The victim testified that she was born in May 1981 and on November 27, 1996 she went with a friend to Keith Maler's apartment about 9:30 P.M. where she met and talked to defendant.   They first spoke in the living room and then proceeded to a bedroom off the kitchen where, shortly after they arrived, defendant began to take off her shirt.   She told defendant to stop but he removed the shirt and, with his arm around her, removed her pants, shoved her on the bed, got himself undressed and raped her.   She testified that she repeatedly told him to stop but made no attempt to escape through the bedroom door, which consisted only of a beach towel, or put up a struggle because she “froze” and feared for her safety.   She further testified that she did not cry out because she did not believe anyone would hear her because the music in the apartment was so loud.   She also testified that after the criminal acts were completed, defendant threatened to kill her and her family if anyone found out.   She then got dressed in the bathroom and went to the other bedroom and played cards with her friend.   She did not report the rape until December 30, 1996.

Defendant denied that he spoke to the victim that evening, was ever alone with her or had any sexual contact with her.   He presented proof that the victim's accusations surfaced after she was threatened by the mother of his two children with whom he was living at the time.   In support of his claim, defendant also points to the lack of corroboration for the victim's story, the lack of physical evidence, and the victim's prior documented false report that she was the victim of a sex offense.

 We find that the proof, when viewed in the light most favorable to the People (see, People v. Spaulding, 247 A.D.2d 762, 764, 669 N.Y.S.2d 423), was legally sufficient to establish all the elements of the crimes for which defendant was convicted.   Proof of the ages of the victim and defendant was uncontroverted and, upon County Court's finding that they engaged in sexual intercourse, the elements of rape in the third degree were established (Penal Law § 130.25[2] ).   As to the charge of rape in the first degree, the victim's testimony, set forth above, was sufficient to establish “ forcible compulsion”,1 an element of rape in the first degree under Penal Law § 130.35(1), as neither physical injury nor screaming or crying out is required for a conviction for that crime (see, Matter of Dakota EE., 209 A.D.2d 782, 618 N.Y.S.2d 133;  People v. Wilson, 192 A.D.2d 782, 783, 596 N.Y.S.2d 528;   People v. Cook, 186 A.D.2d 879, 880, 588 N.Y.S.2d 919, lv. denied 81 N.Y.2d 761, 594 N.Y.S.2d 723, 610 N.E.2d 396;  see also, People v. Thompson, 72 N.Y.2d 410, 415-416, 534 N.Y.S.2d 132, 530 N.E.2d 839).   Although defendant also argues that the People's proof lacks corroboration, we note that corroboration is not required to establish rape or other sex offenses under Penal Law article 130 which include forcible compulsion as an element (see, People v. Soulia, 263 A.D.2d 869, 872, 695 N.Y.S.2d 179, lv. denied 94 N.Y.2d 829, 702 N.Y.S.2d 600, 724 N.E.2d 392;  Matter of Dakota EE., supra, at 782, 618 N.Y.S.2d 133;  see also, People v. Mirabal, 278 A.D.2d 526, 527, 717 N.Y.S.2d 404).   Additionally, corroboration is not required for sex offenses such as rape in the third degree where a victim's incapacity to consent is a product of his or her age (see, People v. Kelly, 270 A.D.2d 511, 512, 705 N.Y.S.2d 689, lv. denied 95 N.Y.2d 854, 714 N.Y.S.2d 5, 736 N.E.2d 866;  People v.. Soulia, supra, at 872, 695 N.Y.S.2d 179).

Likewise, the People's proof was sufficient to establish the elements of sexual abuse in the first degree (see, Penal Law § 130.65[1];  see also, Penal Law § 130.00[3];  People v. Howard, 195 A.D.2d 1082, 600 N.Y.S.2d 544, lv. denied 82 N.Y.2d 755, 603 N.Y.S.2d 997, 624 N.E.2d 183;  People v. Dupont, 60 A.D.2d 689, 689, 400 N.Y.S.2d 389) and endangering the welfare of a child (see, Penal Law § 260.10[1];  see also, People v. Gilmore, 252 A.D.2d 742, 677 N.Y.S.2d 806, lv. denied 92 N.Y.2d 925, 680 N.Y.S.2d 466, 703 N.E.2d 278).

 Defendant next claims that the verdict was against the weight of the evidence.   Based upon our independent review of the trial evidence (see, People v. White, 261 A.D.2d 653, 657, 690 N.Y.S.2d 300, lv. denied 93 N.Y.2d 1029, 697 N.Y.S.2d 588, 719 N.E.2d 949;  see also, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), we again disagree.   The People called three witnesses at trial, the victim, the victim's friend and Maler, the lessee of the subject apartment.   Contrary to defendant's testimony that he had no contact with the victim but “just looked at her” on the date at issue, Maler testified that he saw defendant and the victim with everyone in the living room and then saw them leave through the door into the kitchen but was not sure where they went.   Additionally, the victim's friend testified that the night she and the victim stayed at Maler's apartment, she saw the victim and defendant go into the other bedroom in the apartment.   Although a review of the record reveals that this witness testified that the date was December 10, 1996, a date different from the one charged in the indictment, defendant concedes in his brief that “[a]fter some initial confusion, [the friend] related the events of November 26, [1996]”.   Finally, the victim's testimony, as noted above, contradicts defendant's testimony and was sufficient to establish each element of the crimes charged.

 In conducting our independent review of the record, we accord great deference to County Court, as the trier of fact, given its opportunity to “view the witnesses, hear the testimony and observe demeanor” (People v. Bleakley, supra, at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  see, People v. Mirabal, 278 A.D.2d 526, 527, 717 N.Y.S.2d 404, supra ), as issues of credibility, as well as the weight to be given to the evidence presented, are primarily questions to be determined by the court in a nonjury trial (see, People v. Coleman, 278 A.D.2d 891, 718 N.Y.S.2d 504, lv. denied 96 N.Y.2d 798, 726 N.Y.S.2d 376, 750 N.E.2d 78).   Those determinations will not be disturbed unless clearly unsupported by the record (see, id., at 891, 718 N.Y.S.2d 504;  People v. Montalvo, 263 A.D.2d 461, 462, 691 N.Y.S.2d 908, lv. denied 94 N.Y.2d 826, 702 N.Y.S.2d 597, 724 N.E.2d 389;  People v.. Garcia, 256 A.D.2d 521, 521, 682 N.Y.S.2d 860).   While defendant denied committing the crimes for which he was charged, County Court rejected his version of the events and “we find no basis on this record to disturb County Court's determination of his credibility” (People v. Monroe, 277 A.D.2d 598, 599, 716 N.Y.S.2d 114).   According County Court's assessments this deference, we conclude that County Court's guilty verdict was not against the weight of the evidence.   Additionally, we do not find that any of the inconsistencies in the testimony of the People's witnesses rendered the victim's testimony incredible as a matter of law (see, Matter of Dowayne H., 278 A.D.2d 706, 718 N.Y.S.2d 112) nor that the People's proof was so contradicted by compelling evidence that it was unworthy of belief as a matter of law (see, People v. Smith, 272 A.D.2d 713, 716, 710 N.Y.S.2d 648, lv. denied 95 N.Y.2d 871, 715 N.Y.S.2d 226, 738 N.E.2d 374).

 Finally, we reject defendant's claim that his sentence was harsh and excessive.   Properly sentenced as a persistent felony offender (Penal Law § 70.10) to terms of imprisonment within the applicable statutory guidelines, defendant has not demonstrated any extraordinary circumstances which would warrant this Court to disturb his otherwise lawful sentences (see, People v. Dolphy, 257 A.D.2d 681, 685 N.Y.S.2d 485, lv. denied 93 N.Y.2d 872, 689 N.Y.S.2d 434, 711 N.E.2d 648).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   “Forcible compulsion” means to compel by either:a. use of physical force;  orb. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped (Penal Law § 130.00[8] ).

LAHTINEN, J.

CREW III, J.P., SPAIN, MUGGLIN and ROSE, JJ., concur.

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