Opinion
March 10, 1989
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Callahan, J.P., Doerr, Denman, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Viewing the evidence, as we must, in the light most favorable to the People (People v. Giuliano, 65 N.Y.2d 766), we conclude that the evidence was sufficient to support the jury's determination that the victim was under the age of 17 at the time the alleged act of sexual intercourse took place. The victim testified that she was 14 years old at the time of the incident and 16 years old at the time of trial. Although her testimony contained some contradictions, it was not so incredible as to be unworthy of belief as a matter of law (cf., People v. Jackson, 65 N.Y.2d 265, 270; People v. Foster, 64 N.Y.2d 1144, 1147, cert denied 474 U.S. 857; People v. Reed, 40 N.Y.2d 204, 208-209; People v. Christian, 139 A.D.2d 896, lv denied 71 N.Y.2d 1024). The discrepancies concerning the victim's age, in her testimony and in the documentary evidence, presented a question of fact, and the jury was instructed that it was their responsibility to resolve this factual issue. Moreover, the jury had the opportunity at trial to observe the victim and determine from her physical appearance at the trial whether she was 16 years old, as she claimed, or 18 years old, as claimed by defendant. There is no basis in the record to disturb their determination of this issue.