People v. Allen

225 A.D.2d 487, 639 N.Y.2d 694, 639 N.Y.S.2d 694, 1996 N.Y. App. Div. LEXIS 3248

Opinion

Defendant’s challenge to the trial court’s charge on credibility is unpreserved for review (People v Brown, 220 AD2d 250), and we decline to review it in the interest of justice. If we were to review it, we would find that the charge adequately conveyed the People’s burden of proving every element of the crime beyond a reasonable doubt and the manner in which the jury should assess the credibility of witnesses.

The two sodomy counts were separate and distinct acts (People v Morris, 224 AD2d 450).

Defendant’s sentence was not excessive in light of his extensive criminal history, including the prior rape of a 15-year-old girl. In addition, defendant committed the instant crime while awaiting retrial on another rape case. Concur— Murphy, P. J., Rubin, Ross and Tom, JJ.