Opinion
KA 01-02375.
Decided April 30, 2004.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered January 8, 1999. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (DREW R. DU BRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (WENDY EVANS LEHMANN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
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 upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65). Contrary to defendant's contention, the inconsistencies in the testimony of the People's witnesses do not render the verdict against the weight of the evidence ( see People v. Horne, 2 A.D.3d 1399; People v. Walker, 256 A.D.2d 1183, 1184, lv denied 93 N.Y.2d 858; People v. Bell, 234 A.D.2d 915, 915-916, lv denied 89 N.Y.2d 1009; see generally People v. Bleakley, 69 N.Y.2d 490, 495). Moreover, County Court did not abuse its discretion in denying without a hearing defendant's motion to vacate the judgment pursuant to CPL 440.10. "Since the child's recantation merely impeached or contradicted . . . her former testimony, it failed to constitute `newly discovered' evidence within the meaning of CPL 440.10(1)(g)" ( People v. Cassels, 260 A.D.2d 392, 393, lv denied 93 N.Y.2d 1043).