Opinion
Argued December 5, 2000
January 11, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered January 11, 1999, convicting him of attempted rape in the first degree, sexual abuse in the first degree (three counts), assault in the second degree, and unlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Harold V. Ferguson, Jr., of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Sharon Y. Brodt of counsel; Michael D. Tarbutton on the brief), for respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, DANIEL F. LUCIANO, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant contends that the evidence was insufficient to support his conviction of attempted rape in the first degree. Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
Additionally, the defendant's argument that the charge to the jury constituted reversible error is without merit. Under the circumstances of this case, the use of the phrase "substantial step" rather than "dangerously close" in the court's definition of attempt "did not effect a cognizable legal error, warranting a new trial" (People v. Hernandez, 93 N.Y.2d 261, 272; see also, People v. Slater, 270 A.D.2d 925).
The defendant's remaining contention is unpreserved for appellate review.