People v. Small
| Decision Date | 01 June 2010 |
| Parties | The PEOPLE, etc., respondent,v.David SMALL, appellant. |
| Court | New York Supreme Court — Appellate Division |
74 A.D.3d 843
901 N.Y.S.2d 713
2010 N.Y. Slip Op. 04823
The PEOPLE, etc., respondent,
v.
David SMALL, appellant.
Supreme Court, Appellate Division, Second Department, New York.
June 1, 2010.
[901 N.Y.S.2d 714]
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa R. Marlow Wolland of counsel), for appellant.Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso and Andrew R. Kass of counsel), for respondent.REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER, and LEONARD B. AUSTIN, JJ.
[74 A.D.3d 844] Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered July 23, 2008, convicting him of burglary in the second degree, attempted rape in the first degree, and unlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, and as a matter of discretion in the interest of justice, 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.
The defendant contends that his conviction of attempted rape in the first degree is based upon legally insufficient evidence. Although his contention is unpreserved for appellate review ( see People v. Kolupa, 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430; People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329), we exercise our power to review it as a matter of discretion in the interest of justice.
Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally insufficient to establish the defendant's guilt beyond a reasonable doubt with respect to the crime of attempted rape in the first degree. The complainant testified that after entering her home through a window, the defendant ushered her into the bedroom, and acquiesced thereafter to her request that she be permitted to sit on the floor rather than the bed. He then “tried” to kiss her, “tried” to unbutton her blouse, and told her that she was “hot.” According to the complainant, the defendant “didn't know what to do.” There is no evidence that the defendant undressed at any point. Moreover, the complainant did not testify that the defendant tried to rape her.
While it can be inferred from these facts that the...
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