Opinion
324 KA 06-02078
06-30-2023
The PEOPLE of the State of New York, Respondent, v. Thurman J. MACK, Defendant-Appellant.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, MONTOUR, AND OGDEN, 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 upon a jury verdict of, inter alia, two counts of criminal sexual act in the first degree ( Penal Law § 130.50 [4] ), defendant contends that the verdict is against the weight of the evidence. We affirm.
Contrary to defendant's contention, while there were some inconsistencies in the testimony of the victim, her testimony was not incredible as a matter of law (see People v. O'Neill , 169 A.D.3d 1515, 1515-1516, 93 N.Y.S.3d 501 [4th Dept. 2019] ; People v. Smith , 73 A.D.3d 1469, 1470, 900 N.Y.S.2d 802 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ). 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 a different verdict would not have been unreasonable, the jury did not fail to give the evidence the weight it should be accorded (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). We have reviewed defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.