Opinion
1057 KA 18–00983
11-08-2019
The PEOPLE of the State of New York, Respondent, v. Franck A. KOUAO, Defendant–Appellant.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, after a nonjury trial, of sexual abuse in the first degree ( Penal Law § 130.65[1] ), defendant contends that the evidence is not legally sufficient to support the conviction and that the verdict is against the weight of the evidence with respect to the sexual contact element of that crime. Viewing the evidence in the light most favorable to the People, as we must on a sufficiency challenge (see People v. Delamota, 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ), we conclude that the evidence is legally sufficient (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The victim testified that she felt defendant's penis pressing against her through her clothing as he lay on top of her, which is sufficient to establish that element of the crime (see generally People v. Clark, 181 A.D.2d 1028, 1029, 586 N.Y.S.2d 538 [4th Dept. 1992], lv denied 80 N.Y.2d 895, 587 N.Y.S.2d 925, 600 N.E.2d 652 [1992] ; People v. Boykin, 127 A.D.2d 1004, 1004, 513 N.Y.S.2d 310 [4th Dept. 1987], lv denied 69 N.Y.2d 1001, 517 N.Y.S.2d 1034, 511 N.E.2d 93 [1987] ). Furthermore, viewing the evidence in light of the elements of the crime in this nonjury trial (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 the verdict is not against the weight of the evidence with respect to the element of sexual contact (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). " ‘In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference’ " ( People v. McCoy, 100 A.D.3d 1422, 1422, 953 N.Y.S.2d 788 [4th Dept. 2012] ; see People v. Hutchings, 142 A.D.3d 1292, 1293, 38 N.Y.S.3d 863 [4th Dept. 2016], lv denied 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016] ).
The sentence is not unduly harsh or severe. We have reviewed defendant's remaining contention and we conclude that it does not require reversal or modification of the judgment.