PEOPLE v. LOPEZ AGUILAR

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

The PEOPLE of the State of New York, Respondent, v. Israel LOPEZ-AGUILAR, Appellant.

Decided: July 23, 2009

Before:  CARDONA, P.J., SPAIN, ROSE, KANE and GARRY, JJ. Alan J. Pierce, Syracuse, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), for respondent.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered August 11, 2006, upon a verdict convicting defendant of the crimes of rape in the first degree and sexual abuse in the first degree.

Following a jury trial, defendant was convicted of rape in the first degree and sexual abuse in the first degree as charged in counts 1 and 3 of a four-count indictment.   He was sentenced to maximum concurrent prison terms of 25 years and seven years, respectively, followed by five years of postrelease supervision.

 Initially, defendant contends that the verdict is against the weight of the evidence.   When a different verdict based upon the proof would not be unreasonable, we “must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence, and evaluate the strength of such conclusions” (People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   In reviewing the evidence, we accord great deference to the jury's credibility determinations given its opportunity to hear the testimony and observe the witnesses' demeanor (see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Here, the victim, a 63-year-old woman, testified that on the night of the alleged incidents the 34-year-old defendant, who was living in the basement of her home, came upstairs to obtain some beer.   When the victim objected, defendant pushed her towards the basement and began pulling her down the stairs.   He then blocked her from leaving, pulled off her pants and “pressed [her] down on the floor.”   The victim stated that defendant, who was then naked, began fondling her and penetrated her vagina with his penis.   According to the victim, during the struggle she scratched defendant's back and stomach.   The victim then testified that defendant later came upstairs, held her down, pressing on her right breast, and again fondled her and penetrated her vagina.

The registered nurse who assisted in the treatment of the victim at the hospital testified that the examination revealed multiple small tears in the vaginal mucosa, vaginal bruising, bloody fluid and redness, as well as tenderness under the victim's right breast.   Furthermore, a forensic scientist testified that the fingernail scrapings collected from the victim during that medical examination contained a significant amount of defendant's DNA.

 Although defendant offered different versions of what occurred, testifying that the sexual encounter was consensual, the conflicting testimony presented credibility issues for the jury to resolve (see People v. Rosa, 57 A.D.3d 1018, 1019, 868 N.Y.S.2d 812 [2008], lv. denied 12 N.Y.3d 762, 876 N.Y.S.2d 713, 904 N.E.2d 850 [2009] ).   Furthermore, contrary to defendant's contention, we discern nothing in the testimony and evidence presented that would render the victim's testimony incredible as a matter of law (see People v. Miles, 61 A.D.3d 1118, 1119, 876 N.Y.S.2d 551 [2009];  People v. Campbell, 17 A.D.3d 925, 926, 793 N.Y.S.2d 647 [2005], lv. denied 5 N.Y.3d 760, 801 N.Y.S.2d 254, 834 N.E.2d 1264 [2005] ).   Viewing the evidence in a neutral light and considering the elements of the charged crimes, we conclude that the verdict is supported by the weight of the evidence (see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Defendant's contention that he was denied the effective assistance of counsel is also without merit.   Viewed in totality at the time of representation, the record demonstrates that defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  People v. Chatham, 55 A.D.3d 1045, 1046-1047, 865 N.Y.S.2d 402 [2008] ).

Finally, there is no basis for defendant's contention that the sentence imposed is punishment for asserting his right to trial and, under the circumstances herein, we are unpersuaded that the sentence imposed was harsh and excessive.

ORDERED that the judgment is affirmed.

CARDONA, P.J.

SPAIN, ROSE, KANE and GARRY, JJ., concur.

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