People v. Fenton

234 A.D.2d 921, 652 N.Y.S.2d 194, 1996 N.Y. App. Div. LEXIS 13647

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1996
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a jury trial of sexual abuse in the first degree (Penal Law § 130.65 [1]). Defendant contends that the evidence is insufficient to establish the element of forcible compulsion. By failing to object on that ground, defendant failed to preserve his contention for our review (see, People v Gray, 86 NY2d 10,19; People v Cona, 49 NY2d 26, 33). In any event, upon our review of the record, we conclude that the evidence is sufficient to establish the element of forcible compulsion (see, People v Beecher, 225 AD2d 943; People v Webster, 205 AD2d 312, lv denied 84 NY2d 834).

We reject defendant’s contention that the verdict is against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495).

By failing to object to the testimony of two police officers that allegedly bolstered the victim’s testimony, defendant also failed to preserve that contention for our review (see, CPL 470.05 [2]; People v West, 56 NY2d 662). We decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).

County Court properly denied the motion of defendant to suppress his statement to the police. The statement was not the product of custodial interrogation and there was therefore no need for Miranda warnings (see, People v Petrovich, 202 AD2d 523, affd 87 NY2d 961; People v McKenzie, 183 AD2d 631, lv denied 80 NY2d 907).

Upon our review of the record, we conclude that defendant’s sentence is neither unduly harsh nor severe. (Appeal from Judgment of Erie County Court, LaMendola, J.—Sexual Abuse, 1st Degree.) Present—Pine, J. P., Fallon, Wesley, Davis and Boehm, JJ.