Opinion
No. KA 05-02007.
March 20, 2009.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered June 22, 2005. The judgment convicted defendant, upon a jury verdict, of rape in the second degree.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (ELIZABETH CLIFFORD OF COUNSEL), FOR RESPONDENT.
Before: Hurlbutt, J.P., Smith, Fahey, Green and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the second degree (Penal Law § 130.30). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction inasmuch as his motion for a trial order of dismissal was not "`specifically directed' at the alleged error" asserted on appeal ( People v Gray, 86 NY2d 10, 19). Viewing the evidence in light of the elements of the crime as charged to the jury ( see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495). Contrary to defendant's contention, the testimony of the victim was not incredible as a matter of law ( see People v Ptak, 37 AD3d 1081, lv denied 8 NY3d 949). Finally, the sentence is not unduly harsh or severe.