Opinion
No. 1079 KA 06-01624.
September 28, 2007.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered May 24, 2006. The judgment convicted defendant, after a nonjury trial, of rape in the first degree and sexual abuse in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS T. TEXIDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.
Before: Present — Hurlbutt, J.P., Martoche, Smith, Fahey and Pine, JJ.
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, following a bench trial, of rape in the first degree (Penal Law § 130.35) and sexual abuse in the first degree (§ 130.65 [1]). Defendant failed to preserve for our review his contention that he did not knowingly, voluntarily and intelligently waive the right to a jury trial inasmuch as he did not challenge the adequacy of his allocution with respect to the waiver ( see People v Lumpkins, 11 AD3d 563, lv denied 4 NY3d 746). In any event, the record does not support the contention of defendant that he was unaware of the consequences of his waiver ( see People v Butler, 17 AD3d 379, lv denied 5 NY3d 760), and the record belies defendant's further contention that the waiver was not signed in open court.
Also contrary to defendant's contention, the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495). Although the victim's testimony contains inconsistencies, it cannot be said that the victim's version of events was "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v Stroman, 83 AD2d 370, 373 [internal quotation marks omitted]; see People v Shedrick, 104 AD2d 263, 274, affd 66 NY2d 1015, rearg denied 67 NY2d 758). As County Court noted in rendering its verdict, this was "a case of credibility," and the court's determination in this bench trial to credit the victim's testimony is entitled to great deference ( see generally People v Catlin, 41 AD3d 1199).