Opinion
June 2, 1994
Appeal from the Supreme Court, Bronx County (Lawrence Tonetti, J.).
Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference, the People's evidence clearly established defendant's guilt beyond a reasonable doubt (People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932). The evidence established that defendant, who was considerably older, larger and stronger than his 12-year-old daughter, threatened that he was "going to show [her] how to tongue kiss", followed her into the kitchen where she was alone, came up behind her, pushed his body up against her, then "wiggl[ed] his penis in [her] lower back", right above her buttock while she pleaded for him to "move" away. The People's evidence provided sufficient proof of forcible compulsion by use of physical force (People v. Yeaden, 156 A.D.2d 208, lv denied 75 N.Y.2d 872).
The trial court did not abuse its discretion when it released the jury over the weekend, after it had reached its verdict but before it could be announced, because a juror was rushed to the hospital. On Monday, the court recorded the verdict in the presence of the entire jury. By deliberately absenting himself from the courtroom on the day the verdict was to be recorded, defendant forfeited his right to be present (People v. Sanchez, 65 N.Y.2d 436). Defendant's whereabouts could not be determined and the court waited more than an hour before taking the verdict (People v. Rodriguez, 174 A.D.2d 405, lv denied 78 N.Y.2d 1080).
We have considered defendant's remaining arguments and find them to be without merit.
Concur — Carro, J.P., Wallach, Ross, Rubin and Tom, JJ.