Opinion
2384.
December 4, 2003.
Judgment, Supreme Court, New York County (Michael Obus, J.), rendered April 30, 2001, convicting defendant, after a nonjury trial, of sexual abuse in the first degree, and sentencing him to a term of 5 years probation, with 6 months house arrest as a condition of probation, unanimously affirmed.
Karen Schlossberg, Respondent.
Kerry Elgarten, Defendant-Appellant.
Before: Tom, J.P., Andrias, Saxe, Ellerin, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( People v. Bleakley, 69 N.Y.2d 490). There is no basis for disturbing the court's rejection, after weighing conflicting expert testimony, of defendant's insanity defense and his claims regarding lack of intent. The element of forcible compulsion was established by the evidence that when the victim woke up during the course of the assault, defendant continued his actions, kept his hand over her mouth and resisted her efforts to stop the assault ( see People v. McKinley, 124 A.D.2d 752, lv denied 70 N.Y.2d 952).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.