Opinion
December 30, 1993
Appeal from the County Court of Chemung County (Castellino, J.).
Defendant's rape and sodomy convictions stem from his forcible entry into the victim's home. At the time, the victim resided in her apartment with her young daughter. The victim knew defendant for about 1 1/2 years as a friend of her previous roommate who had moved out of the apartment. The victim testified that her prior association with defendant was friendly and casual only, and involved no romantic relationship. She testified to the force used by defendant against her and to her resistance, as well as her attempts to awaken her next door neighbor without success. The defense claimed that the acts were consensual. The two versions presented credibility issues for the jury to resolve. The jury obviously credited the victim's version and we find the verdict to be supported by the weight and sufficiency of the evidence (see, People v Murphy, 188 A.D.2d 742, lv denied 81 N.Y.2d 890) when viewed, as it must be, in a light most favorable to the People (see, People v Contes, 60 N.Y.2d 620, 621).
Following his conviction, defendant was sentenced to concurrent prison terms of 8 1/3 to 25 years. We find no basis to disturb this sentence in the circumstances (see, CPL 470.15 [b]; People v Keller, 194 A.D.2d 877, lv denied 81 N.Y.2d 1074). We add that defendant's argument that County Court erred in failing to grant a continuance so that he could locate a witness was waived by his failure to move in a timely fashion (see, People v Jones, 171 A.D.2d 609, 610, lv denied 77 N.Y.2d 996). In any event, we see no abuse of discretion in County Court's ruling and it appears that the testimony of the witness, who testified at a prior trial, would have been merely cumulative to that already offered by other witnesses (see, People v Vickers, 163 A.D.2d 500, lv denied 76 N.Y.2d 992).
Accordingly, the judgment of conviction should in all respects be affirmed.
Weiss, P.J., Mercure, White and Mahoney, JJ., concur. Ordered that the judgment is affirmed.