        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

172
KA 11-02614
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT P. BIEGANOWSKI, DEFENDANT-APPELLANT.


AMY L. HALLENBECK, FULTON, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (COURTNEY E. PETTIT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered September 19, 2011. The judgment convicted
defendant, upon a jury verdict, of rape in the second degree and
endangering the welfare of a child.

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

     Memorandum: On appeal from a judgment convicting him following a
jury trial of rape in the second degree (Penal Law § 130.30 [1]
[statutory rape]) and endangering the welfare of a child (§ 260.10
[1]), defendant contends that the verdict is against the weight of the
evidence. We reject that contention. The indictment alleged that
defendant had sexual intercourse with his 13-year-old niece when she
and her brother were visiting his residence on Easter Sunday in 2009.
Defendant was 42 years old at the time. Approximately one year after
the incident occurred, the victim told a counselor at youth camp what
had happened, and the police were then notified. At trial, the victim
testified that defendant threw her on the bed and forced himself on
her while she screamed for defendant to stop and attempted to fight
him off. According to the victim, defendant “reeked” of beer and
staggered out of the bedroom after raping her. Defendant’s sister
testified that the victim, her daughter, had a good relationship with
defendant prior to Easter 2009, but had not been to his residence
since that time. The physician who examined the victim testified that
her hymen had been torn, and the victim testified that she was a
virgin when she was raped by defendant. Defendant took the stand in
his own defense, testifying that he had no recollection of what
happened on the night in question because he was highly intoxicated
from a combination of alcohol and medication. Defendant nevertheless
denied having attacked the victim, testifying that he never laid a
hand on her.
                                 -2-                             172
                                                           KA 11-02614

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495). The jury
credited the testimony of the victim over that of defendant, and the
victim’s testimony was not incredible as a matter of law, i.e., it was
not “ ‘impossible of belief because it [was] manifestly untrue,
physically impossible, contrary to experience, or
self-contradictory’ ” (People v Garafolo, 44 AD2d 86, 88; see People v
Rumph, 93 AD3d 1346, 1347, lv denied 19 NY3d 967). Although the
victim did not immediately report the crime and waited approximately
one year before reporting it, she explained the reason for her delay
at trial, thus presenting “a credibility issue for the jury to
resolve” (People v Reynolds, 81 AD3d 1166, 1167, lv denied 16 NY3d
898; see People v Gathers, 47 AD3d 959, 960-961, lv denied 10 NY3d
863).

     We reject defendant’s further contention that County Court
considered unreliable evidence in determining the sentence, i.e., that
defendant gave the victim herpes. “ ‘Aside from parameters of
punishment defined by the statute which defines the offense, the only
real limit to the court’s discretion in imposing sentence is the
defendant’s right to be sentenced on reliable and accurate
information’ ” (People v Warren, 100 AD3d 1399, 1403; see People v
Travers, 95 AD3d 1239, 1240; see generally People v Outley, 80 NY2d
702, 712). “This right, in turn, is protected by the procedural right
to a reasonable opportunity to refute the aggravating factors which
might have negatively influenced the court” (Warren, 100 AD3d at 1403
[internal quotation marks omitted]).

     Here, defendant had ample notice prior to sentencing that the
victim claimed that defendant gave her herpes and thus could have
obtained medical evidence to refute the victim’s allegation. The
preplea investigation report twice mentioned that the victim had
contracted herpes from defendant, and that report was provided to
defendant before sentencing. Nor did defendant request an adjournment
to attempt to procure such evidence. It was thus for the court “to
consider defendant’s arguments and to evaluate the information
contained in the [presentence] report[s] in determining the
appropriate sentence” (People v Batthany, 27 AD3d 837, 838).

     Finally, we reject defendant’s contention that the   sentence is
unduly harsh and severe, given that the court sentenced   defendant to
four years in prison, three years less than the maximum   punishment
allowed, and considering the nature of the offense. We    therefore
perceive no basis to modify the sentence as a matter of   discretion in
the interest of justice.




Entered:   March 22, 2013                       Frances E. Cafarell
                                                Clerk of the Court
