People v. Pope

6 A.D.3d 1128, 775 N.Y.S.2d 669

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 2004
• Docket: Appeal No. 1
• Status: Published

Opinion

Appeal from a judgment of the Monroe County Court (Frank P Geraci, Jr., J.), rendered January 8, 1999. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65 [3]). Contrary to defendant’s contention, the inconsistencies in the testimony of the People’s witnesses do not render the verdict against the weight of the evidence (see People v Horne, 2 AD3d 1399 [2003]; People v Walker, 256 AD2d 1183, 1184 [1998], lv denied 93 NY2d 858 [1999]; People v Bell, 234 AD2d 915, 915-916 [1996], lv denied 89 NY2d 1009 [1997]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Moreover, County Court did not abuse its discretion in denying without a hearing defendant’s motion to vacate the judgment pursuant to CPL 440.10. “Since the child’s recantation merely impeached or contradicted . . . her former testimony, it failed to constitute ‘newly discovered’ evidence within the meaning of CPL 440.10 (1) (g)” (People v Cassels, 260 AD2d 392, 393 [1999], lv denied 93 NY2d 1043 [1999]). Present—Wisner, J.P., Hurlbutt, Scudder, Kehoe and Gorski, JJ.