Opinion
January 7, 1992
Appeal from the Supreme Court, Bronx County (Lawrence Bernstein, J.).
After indicating that he had something confidential to relate to the victim, defendant, who was known to the victim, was given entry to her apartment. The victim testified that defendant had a bottle of liquor with him, and "was smelling cocaine." He stated that he expected to be killed that night, and intended to have sexual intercourse with the victim. When defendant walked toward the bathroom, the victim tried to escape through the front door, but was blocked by defendant. During the ensuing struggle, defendant maneuvered the victim into the bedroom, and raped her. He warned her not to tell the police, upon a threat of death. An hour later, the distraught victim told her neighbor, who observed the disarray of the bedroom. On the following day, the victim related the events to her boyfriend, who convinced her to report the incident to the police, and to confront defendant in his own home. The victim testified that defendant asked her forgiveness in the presence of his wife. Medical evidence established the presence of sperm, but since the victim recently had given birth, and had a vaginal infection, evidence of tears or abrasions to the vaginal area could not be discerned.
Viewing the evidence in a light most favorable to the People (People v. Contes, 60 N.Y.2d 620), and under the standards set forth in People v. Bleakley ( 69 N.Y.2d 490, 495) defendant's guilt was proved beyond a reasonable doubt by legally sufficient evidence, and the verdict was not against the weight of the evidence. The People's evidence was not deficient for lack of proof of violence. Forcible compulsion can be established by evidence that the defendant used his superior age, size and strength to prevent the victim from escaping, and to compel her to have sexual intercourse with him (People v. Yeaden, 156 A.D.2d 208, lv denied 75 N.Y.2d 872). Such testimony of force, accompanied by a threat to kill, and defendant's admission concerning intercourse, established the requisite element of force (People v. Gomez, 112 A.D.2d 445, 446, lv denied 66 N.Y.2d 919). Arguments raised concerning the alleged inconsistencies in the victim's testimony were matters properly before the jury (People v. Heyward, 160 A.D.2d 470; People v. Mosley, 112 A.D.2d 812, 814, affd 67 N.Y.2d 985) as was the issue of the victim's credibility. Finally, we find no abuse of discretion by the court in the imposition of sentence herein.
Concur — Ellerin, J.P., Kupferman, Ross and Smith, JJ.