People v. Gilmore
| Decision Date | 16 July 1998 |
| Citation | 677 N.Y.S.2d 806,252 A.D.2d 742 |
| Parties | , 1998 N.Y. Slip Op. 7038 The PEOPLE of the State of New York, Respondent, v. Jerome GILMORE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Paul J. Connolly, Albany, for appellant.
Robert M. Carney, District Attorney (Jo Anne Assini of counsel), Schenectady, for respondent.
Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.
Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered October 11, 1996, upon a verdict convicting defendant of the crimes of rape in the first degree, sodomy in the first degree, unlawful imprisonment in the second degree, endangering the welfare of a child, rape in the third degree, sodomy in the third degree and sexual abuse in the third degree.
Defendant's convictions arise out of his acknowledged September 24, 1995 sexual contact with a 15-year-old female in a motel room in the City of Schenectady, Schenectady County. Defendant was indicted for (as relevant to this appeal) sexual abuse in the first degree, sodomy in the first degree and rape in the first degree as the result of his alleged forcible digital penetration of the victim's vagina and his forcible acts of cunnilingus and sexual intercourse. Convicted of rape in the first degree and sodomy in the first degree but acquitted of the charge of sexual abuse in the first degree, defendant now appeals, contending only that the jury's finding of forcible compulsion (see, Penal Law § 130.00[8][a], [b]; § 130.35[1]; § 130.50[1] ) was against the weight of the evidence. We disagree and accordingly affirm.
At trial, the victim described the various sex acts perpetrated upon her by defendant and also testified that she repeatedly told defendant that she did not want to have sex with him, that she begged him to stop, that he overcame her physical resistance ( ) with his superior size and strength ("He was about twice my size.") by pinning down her body, shoulders and arms, and that she did not scream or attempt to scratch or bite him because she was afraid he would hurt her. In addition, the evidence showed that, upon leaving the motel room, the victim was visibly upset and "wasn't walking normal"; she accepted the aid of a passing motorist and told him that she had been raped. The incident was immediately reported to the police and medical examination disclosed the existence of a deep vaginal abrasion, which was felt to be more likely associated with force than with consensual sex. In view of the foregoing evidence and recognizing the jury's role in resolving credibility issues by virtue of its opportunity to view witnesses, hear testimony and observe demeanor (see, People v. Van Steenburg, 221 A.D.2d 799, 801, 633 N.Y.S.2d 867, lv. denied 87 N.Y.2d 978, 642 N.Y.S.2d 207...
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