People v. Mais
| Decision Date | 12 November 2015 |
| Parties | The PEOPLE, etc., respondent, v. Donovan MAIS, appellant. |
| Court | New York Supreme Court — Appellate Division |
133 A.D.3d 687
20 N.Y.S.3d 129
The PEOPLE, etc., respondent,
v.
Donovan MAIS, appellant.
Supreme Court, Appellate Division, Second Department, New York.
Nov. 12, 2015.
Mark Diamond, New York, N.Y., for appellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered November 24, 2010, convicting him of burglary in the second degree, attempted rape in the first degree, and attempted robbery in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of attempted rape in the first degree under count two of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Contrary to the People's contention, the defendant's challenge to the legal sufficiency of the evidence supporting his conviction of attempted rape in the first degree is preserved for appellate review. His argument in support of his trial motion of dismissal was sufficiently specific to alert the court to his position (see CPL 470.05[2] ; People v. Alke, 90 A.D.3d 943, 944, 935 N.Y.S.2d 96 ; People v. Demolaire, 55 A.D.3d 621, 621, 865 N.Y.S.2d 625 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally insufficient to establish the defendant's guilt of attempted rape in the first degree beyond a reasonable
doubt. The complainant testified that she was sleeping in her bedroom when she awakened to find the defendant, who had entered her house through a window, standing in her bedroom. He initially demanded money from
her. After she told him twice that she had none, he yelled at her "take your clothes off." He then walked around the left side of the bed towards her, again yelled "take your clothes off," and pulled back her bed covers. 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 470.05[2] ; People v....
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...v. Robbins , 78 N.Y.2d 1105, 578 N.Y.S.2d 126 (1991); People v. Dekle , 56 N.Y.2d 835, 452 N.Y.S.2d 568 (1982); People v. Mais , 133 A.D.3d 687, 688–89, 20 N.Y.S.3d 129, 131 (2d Dept. 2015); People v. Taylor , 120 A.D.3d 519, 520, 990 N.Y.S.2d 635, 637 (2d Dept. 2014) (“A general objection ......
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...a summation is insuicient to preserve a claim for appellate review; a party must specify a basis for the objection.”); People v. Mais , 133 A.D.3d 687, 688–89, 20 N.Y.S.3d 129, 131 (2d Dept. 2015). A general objection does not preserve matter for appellate review unless it is followed by a ......
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Objections & related procedures
...a summation is insuicient to preserve a claim for appellate review; a party must specify a basis for the objection.”); People v. Mais , 133 A.D.3d 687, 688–89, 20 N.Y.S.3d 129, 131 (2d Dept. 2015). A general objection does not preserve matter for appellate review unless it is followed by a ......
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Objections & related procedures
...a summation is insuicient to preserve a claim for appellate review; a party must specify a basis for the objection.”); People v. Mais , 133 A.D.3d 687, 688–89, 20 N.Y.S.3d 129, 131 (2d Dept. 2015). 1-13 OBJECTIONS & RELATED PROCEDURES §1:160 A general objection does not preserve matter for ......