People v. Henderson

238 A.D.2d 192, 656 N.Y.S.2d 723, 1997 N.Y. App. Div. LEXIS 3966

Opinion

—Judgment, Supreme Court, New York County (Alfred Kleiman, J.), rendered February 25, 1994, convicting defendant, after a jury trial, of burglary in the first degree, attempted rape in the first degree and sexual abuse in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 71/2 to 15 years, 71h to 15 years and S1h to 7 years, respectively, unanimously affirmed.

Defendant’s conviction of attempted rape in the first degree was supported by legally sufficient evidence, in that his actions clearly evinced an intent to commit rape and came dangerously near to completion of the rape (see, People v Bracey, 41 NY2d 296, 300).

It would have been better had the court not been so involved in the questioning of witnesses; however, it was not so excessive as to warrant reversal (see, People v Yut Wai Tom, 53 NY2d 44).

Defendant’s challenge to the court’s jury instruction on the crime of attempted rape is unpreserved for appellate review (People v Autry, 75 NY2d 836), and we decline to review it in the interest of justice. Were we to review it, we would find that the court’s charge conveyed the proper standard (see, People v Mahboubian, 74 NY2d 174, 190). Concur—Murphy, P. J., Wallach, Mazzarelli and Andrias, JJ.