People v. Collins

197 A.D.3d 904

150 N.Y.S.3d 644 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Robert COLLINS, Defendant-Appellant.

388

KA 19-00380

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: August 26, 2021

DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On February 28, 2018, County Court rendered a judgment convicting defendant upon a jury verdict of two counts of course of sexual conduct against a child in the second degree ( Penal Law § 130.80 [1] [b] ) and imposed a sentence of imprisonment. Defendant was later resentenced on January 23, 2019, upon the People's application, to a greater term of imprisonment than that originally imposed. Defendant now purports to appeal from a "judgment of conviction ... rendered on January 23, 2019," but the only contention raised by defendant on appeal relates to the judgment rendered on February 28, 2018. We exercise our discretion in the interest of justice to treat the appeal as taken from the judgment rendered on February 28, 2018 (see CPL 460.10 [6] ), and we note that defendant's appeal from that judgment is timely pursuant to CPL 440.40 (6).

Nevertheless, contrary to defendant's contention, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that, although an acquittal would not have been unreasonable, the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Baker , 30 A.D.3d 1102, 1102-1103, 817 N.Y.S.2d 793 [4th Dept. 2006], lv denied 7 N.Y.3d 846, 823 N.Y.S.2d 775, 857 N.E.2d 70 [2006] ). Although defendant contends that there were inconsistencies in the testimony of the victims, those " ‘inconsistencies are not so substantial as to render the verdict against the weight of the evidence’ " ( People v. Carpenter , 187 A.D.3d 1556, 1558, 132 N.Y.S.3d 207 [4th Dept. 2020], lv denied 36 N.Y.3d 970, 138 N.Y.S.3d 468, 162 N.E.3d 697 [2020] ; see Baker , 30 A.D.3d at 1102-1103, 817 N.Y.S.2d 793 ).