People v. Fiol

279 A.D.2d 477, 718 N.Y.S.2d 867, 2001 N.Y. App. Div. LEXIS 219

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 2001
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered January 11, 1999, convicting him of attempted rape in the first degree, sexual abuse in the first degree (three counts), assault in the second degree, and unlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the evidence was insufficient to support his conviction of attempted rape in the first degree. Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find the evidence was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

Additionally, the defendant’s argument that the charge to the jury constituted reversible error is without merit. Under the circumstances of this case, the use of the phrase “substantial step” rather than “dangerously close” in the court’s definition of attempt “did not effect a cognizable legal error, warranting a new trial” (People v Hernandez, 93 NY2d 261, 272; see also, People v Slater, 270 AD2d 925).

The defendant’s remaining contention is unpreserved for appellate review. Ritter, J. P., S. Miller, Luciano and Smith, JJ., concur.