November 2, 2004. Appeal from the 1st Dept: 11 AD3d 369 (NY). Application in criminal cases for leave to appeal — Denied. (Kaye, Ch.J.)

05[2]; People v Hawkins, 11 N.Y.3d 484, 492). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt of attempted rape in the first degree beyond a reasonable doubt (see People v Clyde, 18 N.Y.3d 145; People v Pereau, 64 N.Y.2d 1055; People v Jackson, 11 A.D.3d 369; People v Urbina, 248 A.D.2d 123). Moreover, upon our independent review of the weight of the evidence (see CPL 470.

05[2]; People v Hawkins, 11 N.Y.3d 484, 492). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt of attempted rape in the first degree beyond a reasonable doubt (see People v Clyde, 18 N.Y.3d 145; People v Pereau, 64 N.Y.2d 1055; People v Jackson, 11 A.D.3d 369; People v Urbina, 248 A.D.2d 123). Moreover, upon our independent review of the weight of the evidence (see CPL 470.

The defendant's challenge to the legal sufficiency of the evidence supporting his conviction of attempted rape in the first degree is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the People (seePeople v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of attempted rape in the first degree beyond a reasonable doubt (seePeople v. Clyde, 18 N.Y.3d 145, 938 N.Y.S.2d 243, 961 N.E.2d 634 ; People v. Pereau, 64 N.Y.2d 1055, 489 N.Y.S.2d 872, 479 N.E.2d 217 ; People v. Jackson, 11 A.D.3d 369, 784 N.Y.S.2d 35 ; People v. Urbina, 248 A.D.2d 123, 669 N.Y.S.2d 804 ). Moreover, upon our independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we are satisfied that the verdict of guilt as to that crime was not against the weight of the evidence (seePeople v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

There is no basis for disturbing the jury's credibility determinations. The evidence established that defendant intended to commit rape and that he came dangerously close to doing so (see e.g.People v. Jackson , 11 A.D.3d 369, 784 N.Y.S.2d 35 [1st Dept. 2004], lv. denied 3 N.Y.3d 757, 788 N.Y.S.2d 674, 821 N.E.2d 979 [2004] ; People v. Tenden , 232 A.D.2d 244, 649 N.Y.S.2d 1 [1st Dept. 1996], lv denied 89 N.Y.2d 947, 655 N.Y.S.2d 898, 678 N.E.2d 511 [1997] ). Defendant chased the victim, knocked her down, crouched over her, grabbed her breasts and buttocks, and pulled down his pants.

Unlike the completed crime, attempted rape does not require any proof of penetration. The victim's testimony about defendant's unsuccessful efforts to engage her in sexual intercourse by force overwhelmingly established both that defendant intended to commit rape and that he came dangerously close to doing so (see e. g.People v. Jackson, 11 A.D.3d 369, 784 N.Y.S.2d 35 [1st Dept. 2004], lv denied 3 N.Y.3d 757, 788 N.Y.S.2d 674, 821 N.E.2d 979 [2004] ; People v. Tenden, 232 A.D.2d 244, 649 N.Y.S.2d 1 [1st Dept. 1996], lv denied 89 N.Y.2d 947, 655 N.Y.S.2d 898, 678 N.E.2d 511 [1997] ).The court properly permitted the victim to testify as to her understanding of the term "penetration," because this explained why she initially told the police, medical personnel and her friend that no penetration had occurred.

After he pulled down the covers, she began screaming and he turned and ran out. There was no evidence that the defendant touched the complainant or that he made a verbal demand to have sexual intercourse with her. Additionally, there was no evidence that the defendant undressed or that any of the complainant's clothes were removed.Although it could be reasonably inferred from the evidence adduced at trial that the defendant intended to engage in some type of criminal sexual conduct, it cannot be inferred that he attempted to engage in sexual intercourse by forcible compulsion pursuant to Penal Law § 130.35(1) (see People v. Small, 74 A.D.3d 843, 844, 901 N.Y.S.2d 713; cf. People v. Clyde, 18 N.Y.3d 145, 938 N.Y.S.2d 243, 961 N.E.2d 634; People v. Pereau, 64 N.Y.2d 1055, 489 N.Y.S.2d 872, 479 N.E.2d 217; People v. Jackson, 11 A.D.3d 369, 784 N.Y.S.2d 35; People v. Lyons, 197 A.D.2d 708, 602 N.Y.S.2d 924). Accordingly, the conviction of attempted rape in the first degree and the sentence imposed thereon must be vacated, and that count of the indictment must be dismissed. The defendant's contention that the identification evidence was legally insufficient to support his convictions of burglary in the second degree and attempted robbery in the third degree is unpreserved for appellate review (see CPL 470.

After he pulled down the covers, she began screaming and he turned and ran out. There was no evidence that the defendant touched the complainant or that he made a verbal demand to have sexual intercourse with her. Additionally, there was no evidence that the defendant undressed or that any of the complainant's clothes were removed.Although it could be reasonably inferred from the evidence adduced at trial that the defendant intended to engage in some type of criminal sexual conduct, it cannot be inferred that he attempted to engage in sexual intercourse by forcible compulsion pursuant to Penal Law § 130.35(1) (see People v. Small, 74 A.D.3d 843, 844, 901 N.Y.S.2d 713 ; cf. People v. Clyde, 18 N.Y.3d 145, 938 N.Y.S.2d 243, 961 N.E.2d 634 ; People v. Pereau, 64 N.Y.2d 1055, 489 N.Y.S.2d 872, 479 N.E.2d 217 ; People v. Jackson, 11 A.D.3d 369, 784 N.Y.S.2d 35 ; People v. Lyons, 197 A.D.2d 708, 602 N.Y.S.2d 924 ). Accordingly, the conviction of attempted rape in the first degree and the sentence imposed thereon must be vacated, and that count of the indictment must be dismissed.

05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of attempted rape in the first degree beyond a reasonable doubt ( see People v. Clyde, 18 N.Y.3d 145, 938 N.Y.S.2d 243, 961 N.E.2d 634;People v. Pereau, 64 N.Y.2d 1055, 489 N.Y.S.2d 872, 479 N.E.2d 217;People v. Jackson, 11 A.D.3d 369, 784 N.Y.S.2d 35;People v. Urbina, 248 A.D.2d 123, 669 N.Y.S.2d 804). Moreover, upon our independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we are satisfied that the verdict of guilt as to that crime was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902). MASTRO, J.P., COHEN, MILLER and HINDS–RADIX, JJ., concur.

The attempted murder victim testified that, without provocation, defendant entered her home and cut her throat, and the medical records of that victim established that she sustained multiple stab wounds to the neck, one of which had penetrated her airway. We thus conclude that the evidence, viewed in the light most favorable to the People ( see People v Contes, 60 NY2d 620, 621), is legally sufficient to establish that defendant intended to kill that victim and "came dangerously close to doing so" ( People v Jackson, 11 AD3d 369, 370, lv denied 3 NY3d 757; see People v Moradel, 278 AD2d 250, lv denied 99 NY2d 538; People v McDavis, 97 AD2d 302, 303). Contrary to defendant's further contention, the verdict with respect to the count of attempted murder is not against the weight of the evidence ( see generally People v Danielson, 9 NY3d 342, 348-349; Bleakley, 69 NY2d at 495).