                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 14, 2015                      105468
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

YOCKOL POWELL,
                    Appellant.
________________________________


Calendar Date:   March 24, 2015

Before:   Peters, P.J., Egan Jr., Rose and Lynch, JJ.

                             __________


     Donna Maria Lasher, Youngsville, for appellant.

      James R. Farrell, District Attorney, Monticello (Katy
Schlichtman of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Sullivan
County (LaBuda, J.), rendered March 22, 2012, upon a verdict
convicting defendant of the crimes of rape in the third degree,
criminal trespass in the second degree (two counts), endangering
the welfare of a child and criminal contempt in the second
degree.

      Defendant was charged by indictment with two counts of
burglary in the second degree, rape in the first degree,
endangering the welfare of a child and criminal contempt in the
second degree stemming from events occurring in the victim's
apartment in May 2011. Following a jury trial, defendant was
convicted of the latter two charges and the lesser included
charges of rape in the third degree and two counts of criminal
                              -2-                105468

trespass in the second degree. County Court thereafter sentenced
defendant to an aggregate prison term of three years, followed by
15 years of postrelease supervision. Defendant appeals and we
affirm.

      Defendant challenges the verdict as both legally
insufficient and as against the weight of the evidence, focusing
primarily on the contention the People failed to prove that
defendant engaged in nonconsensual sexual intercourse with the
victim. In order to preserve a challenge to the legal
sufficiency of the evidence, a defendant must make a specific
motion to dismiss at the close of the proof (see People v Kolupa,
13 NY3d 786, 787 [2009]; People v Hawkins, 11 NY3d 484, 492
[2008]; People v Desmond, 118 AD3d 1131, 1132 [2014], lv denied
24 NY3d 1002 [2014]). A review of the record here shows that
defendant's legal insufficiency claim was preserved only as to
the rape conviction. Nonetheless, in deciding whether the
verdict was against the weight of the evidence, we necessarily
review the legal sufficiency of the evidence on each charge (see
People v Danielson, 9 NY3d 342, 348-349 [2007]).

      With respect to the rape conviction, the People were
required to prove that defendant "engage[d] in sexual intercourse
with another person without such person's consent where such lack
of consent is by reason of some factor other than incapacity to
consent" (Penal Law § 130.25 [3]). A "lack of consent" is
further defined as "circumstances under which . . . the victim
clearly expressed that he or she did not consent to engage in
[the sexual] act, and a reasonable person in the actor's
situation would have understood such person's words and acts as
an expression of lack of consent to such act under all of the
circumstances" (Penal Law § 130.05 [2] [d]; see People v Worden,
22 NY3d 982, 984 [2013]).

      The victim and defendant had four children together during
a 12-year relationship, including a 10 year old who testified at
trial (hereinafter the child). Two days prior to the events at
issue, the victim moved into an apartment with the children.
Defendant did not live in the apartment and had not been given a
key. The victim testified that, on the evening of May 25, 2011,
she returned home with her children and found defendant inside
                              -3-                105468

the apartment. An altercation ensued in which defendant struck
the victim multiple times. After the child screamed and threw a
wheel at defendant, defendant told the child that the victim was
a "bozo ass bitch. She deserves what she gets" and pushed the
child into a bedroom. The altercation resumed and defendant
threw the victim to the floor while kicking her in the ribs.
After several minutes, defendant then asked, "[W]hat would you do
if I raped you, would you tell the police?" The victim testified
that she did not respond, explaining that in "domestic violence
cases, they tell you just go along with it, you know, just to try
to get [the] abuser away." The victim and defendant then engaged
in sexual intercourse in her bedroom. The victim testified that,
although she was trying to be quiet because her infant child was
in the room, she "told him to stop [be]cause that was hurting, I
was hurt, my ribs, my legs everything was hurting." Defendant
left in the morning and, when the victim returned to the
apartment later that day, she called 911 suspecting that he had
returned. The police arrived within minutes and found defendant
hiding in the closet of his daughter's bedroom.

      We recognize that the victim was a reluctant witness who
wanted to maintain her relationship with defendant. She
explained that it was common for the parties to engage in sexual
intercourse after a verbal or physical altercation. When County
Court inquired whether the sexual intercourse was against her
will, she responded "not necessarily." Notwithstanding the
victim's equivocation, the record shows that she had been beaten
and injured prior to the act of intercourse and, consequently,
asked defendant to stop during the act. Moreover, the child
testified that she witnessed the physical altercation and heard
the victim "screaming [for defendant to] get off her." Contrary
to the victim's testimony, the child also testified that, before
she was put into the bedroom, she observed defendant remove the
victim's pants.

      Viewing this evidence in a light most favorable to the
People, we find that the jury could rationally conclude that the
victim did not consent to the sexual encounter, and that the
evidence was legally sufficient to support the rape conviction.
Although a different verdict would not have been unreasonable,
after viewing and weighing the evidence in a neutral light, with
                              -4-                105468

deference to the jury's credibility assessments, we further
conclude that the verdict on this count is not contrary to the
weight of the evidence (see People v Desmond, 118 AD3d at 1132-
1133; People v Simonetta, 94 AD3d 1242, 1243-1244 [2012], lv
denied 19 NY3d 1029 [2012]).

      We further conclude that the verdict is not against the
weight of the evidence on the remaining convictions. With
respect to the endangering the welfare of a child conviction, the
People were required to prove that defendant "engage[d] in
conduct knowing it [would] present a 'likelihood' of harm to a
child (i.e., with an awareness of the potential harm)" (People v
Hitchcock, 98 NY2d 586, 590 [2002], quoting People v Johnson, 95
NY2d 368, 372 [2000]). That defendant repeatedly struck the
victim directly in the presence of the child, who attempted to
intervene on behalf of her mother, adequately supports this
conviction (see People v Johnson, 95 NY2d at 371-372 [2000];
People v Bell, 80 AD3d 891, 891 [2011]; People v Bray, 46 AD3d
1232, 1234 [2007]). Further, as defendant entered and remained
in the victim's apartment without permission on both days
described above, the jury could readily find defendant guilty of
two counts of criminal trespass in the second degree (see Penal
Law § 140.15 [1]; People v Carter, 46 AD3d 1335, 1335 [2007], lv
denied 10 NY3d 932 [2008]; People v Jackson, 38 AD3d 1052, 1054
[2007], lv denied 8 NY3d 986 [2007]; People v Hudson, 269 AD2d
747, 747 [2000], lv denied 94 NY2d 948 [2000]). Given the
undisputed fact that an order of protection issued in 2002
remained in effect at the time of this incident and required
defendant to stay away from the victim and her home, the jury
could reasonably find defendant guilty of criminal contempt in
the second degree (see Penal Law § 215.50 [3]; People v Lewis, 5
NY3d 546, 552-553 [2005]; People v McPherson, 32 AD3d 558, 559
[2006], lv denied 7 NY3d 868 [2006]).

      Finally, defendant contends that he was deprived of a fair
trial by comments made by the prosecutor during summation.
Notably, defendant failed to preserve this claim by raising any
objections at trial (see People v Adams, 39 AD3d 1081, 1083
[2007], lv denied 9 NY3d 872 [2007]; People v Nichols, 257 AD2d
                                 -5-                  105468

851, 853 [1999], lv denied 93 NY2d 901 [1999]).1

         Peters, P.J., Egan Jr. and Rose, JJ., concur.



         ORDERED that the judgment is affirmed.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court




     1
        Were this issue properly before us, however, we would
reject defendant's claim. A prosecutor is accorded "broad
latitude" when responding to a defense counsel's summation,
although there are limitations inherent in a prosecutor's status
as a quasi-judicial officer that compels a prosecutor to act
impartially in the pursuit of justice (People v Wilhelm, 34 AD3d
40, 54 [2006]; see People v D'Alessandro, 184 AD2d 114, 119
[1992], lv denied 81 NY2d 884 [1993]). Here, defense counsel
emphasized that this was a "family" matter and the People were
primarily concerned with "conviction statistics," going so far as
to assert that "[the victim] needs an [o]rder of [p]rotection
from the D.A.'s office." Such commentary predictably prompted a
strong and sometimes improper response from the prosecutor, but
not one so substantially prejudicial as to deprive defendant of a
fair trial (see People v Santiago, 22 NY3d 740, 752 [2014];
People v Nelson, 68 AD3d 1252, 1255 [2009]).
