People v. Whitaker

Appellate Division of the Supreme Court of New York

People v. Whitaker

302 A.D.2d 904, 753 N.Y.S.2d 795, 2003 N.Y. App. Div. LEXIS 1103

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 7, 2003

StatusPublished

Cited by2 cases

This text of 302 A.D.2d 904 (People v. Whitaker) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Whitaker, 302 A.D.2d 904, 753 N.Y.S.2d 795, 2003 N.Y. App. Div. LEXIS 1103 (N.Y. Ct. App. 2003).

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Opinion

Appeal from a judgment of Supreme Court, Erie County (Wolfgang, J.), entered July 17, 2000, convicting defendant after a jury trial of, inter alia, rape in the first degree.

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

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of rape in the first degree (Penal Law former § 130.35 [3]) and other crimes arising from the alleged sexual assault of a 10-year-old girl. Defendant’s contention concerning the admissibility of testimony by the People’s medical expert on the subject of “legal penetration” is not preserved for our review (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]). We reject defendant’s contention that the alleged error arising from the admission of that testimony need not be preserved (cf. People v Ahmed, 66 NY2d 307, 310, rearg denied 67 NY2d 647). We conclude that the verdict finding defendant guilty of rape in the first degree is not against the weight of the evidence and that there is legally sufficient evidence of the victim’s age (see People v Bleakley, 69 NY2d 490, 495). We also conclude that the sentence is not unduly harsh or severe. Defendant’s further contention raised in the pro se supplemental brief concerning the legal sufficiency of the evidence before the grand jury is not reviewable on appeal (see CPL 210.30 [6]; People v Augustine, 235 AD2d 915, 917, appeal dismissed 89 NY2d 1072, lv denied 89 NY2d 1088).

The remaining contentions raised by defendant in the pro se supplemental brief are without merit. We note in particular that, contrary to defendant’s contention, “[s]exual abuse in the first degree is not a lesser included offense of rape in the first degree” (People v West, 256 AD2d 1159, 1159, lv denied 93 NY2d 880). Present — Green, J.P., Wisner, Scudder, Burns and Hayes, JJ.

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Appeal from a judgment of Supreme Court, Erie County (Wolfgang, J.), entered July 17, 2000, convicting defendant after a jury trial of, inter alia, rape in the first degree.

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

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of rape in the first degree (Penal Law former § 130.35 [3]) and other crimes arising from the alleged sexual assault of a 10-year-old girl. Defendant’s contention concerning the admissibility of testimony by the People’s medical expert on the subject of “legal penetration” is not preserved for our review (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]). We reject defendant’s contention that the alleged error arising from the admission of that testimony need not be preserved (cf. People v Ahmed, 66 NY2d 307, 310, rearg denied 67 NY2d 647). We conclude that the verdict finding defendant guilty of rape in the first degree is not against the weight of the evidence and that there is legally sufficient evidence of the victim’s age (see People v Bleakley, 69 NY2d 490, 495). We also conclude that the sentence is not unduly harsh or severe. Defendant’s further contention raised in the pro se supplemental brief concerning the legal sufficiency of the evidence before the grand jury is not reviewable on appeal (see CPL 210.30 [6]; People v Augustine, 235 AD2d 915, 917, appeal dismissed 89 NY2d 1072, lv denied 89 NY2d 1088).

The remaining contentions raised by defendant in the pro se supplemental brief are without merit. We note in particular that, contrary to defendant’s contention, “[s]exual abuse in the first degree is not a lesser included offense of rape in the first degree” (People v West, 256 AD2d 1159, 1159, lv denied 93 NY2d 880). Present — Green, J.P., Wisner, Scudder, Burns and Hayes, JJ.

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Bluebook (online)

302 A.D.2d 904, 753 N.Y.S.2d 795, 2003 N.Y. App. Div. LEXIS 1103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-whitaker-nyappdiv-2003.

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