People v. Kershaw

140 A.D.2d 628, 528 N.Y.S.2d 668, 1988 N.Y. App. Div. LEXIS 5605

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1988
• Status: Published

Opinion

The defendant contends on appeal, inter alia, that his guilt was not proven. We disagree. Viewing the evidence adduced at trial in a light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the conviction. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]). Although the testimony of the complainant and the defendant was in sharp contrast on the issue of forcible compulsion (Penal Law § 130.00 [8]), the witnesses’ credibility was primarily for the jury to determine (People v Porrata, 119 AD2d 704). The complainant testified that the defendant, in response to her resistance to his attack, pushed her to the ground and eventually lifted her and dropped her in a garbage dumpster. She also testified that she cooperated with the defendant only because she feared for her life and this would enable her to avoid injury. This clearly constituted forcible compulsion since the attack was accompanied by "a threat, express or implied, which places a person in fear of immediate death or physical injury” (Penal Law § 130.00 [8] [b]). This testimony was buttressed by other evidence, namely, the gold chain and horn and shirt buttons which the defendant detached when he ripped the complainant’s blouse (cf, People v Sargeant, 128 AD2d 914, 915).

We are not persuaded by the defendant’s contention that his sentence of 4 to 12 years’ imprisonment was excessive. Mangano, J. P., Thompson, Sullivan and Harwood, JJ., concur.