Opinion
9109 Ind. 1920/17
04-30-2019
The PEOPLE of the State of New York, Respondent, v. Mohammed BEZGHOUD, Defendant-Appellant.
Edelstein & Grossman, New York (Jonathan Edelstein of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
Edelstein & Grossman, New York (Jonathan Edelstein of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.
Friedman, J.P., Gische, Webber, Kahn, Oing, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. The jury could have reasonably found that after the victim revoked any consent to sexual activity, defendant's body contact with the victim constituted the use of force to restrain her, and was not merely incidental to ordinary sexual behavior (see e. g. People v. Simmons, 278 A.D.2d 29, 717 N.Y.S.2d 152 [1st Dept. 2000], lv denied 96 N.Y.2d 787, 725 N.Y.S.2d 652, 749 N.E.2d 221 [2001] ).
The court's charge on first-degree sexual abuse, viewed as a whole, conveyed the proper standard (see People v. Medina, 18 N.Y.3d 98, 104, 936 N.Y.S.2d 608, 960 N.E.2d 377 [2011] ). The court expressly instructed the jury that forcible compulsion was an essential element of the crime, and the jury could not have been misled to believe that lack of consent under a theory other than force would suffice.
The court properly denied defendant's motion to suppress identification evidence. The People satisfied their burden of establishing that the victim's identification of defendant was confirmatory (see People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992] ). In any event, there is no basis for reversal because at trial defendant did not dispute the element of identity, relying instead on claims of consent and absence of force.
The court providently exercised its discretion in precluding certain evidence offered by defendant under a state of mind theory, because its probative value was minimal and it was cumulative to other evidence (see generally People v. Primo, 96 N.Y.2d 351, 355, 728 N.Y.S.2d 735, 753 N.E.2d 164 [2001] ). In any event, any error in this regard was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).