                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 7, 2016                      106576
________________________________

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

ABEL J. MELENDEZ,
                    Appellant.
________________________________


Calendar Date:   February 18, 2016

Before:   Peters, P.J., Garry, Rose and Devine, JJ.

                              __________


     Sandra M. Colatosti, Albany, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                              __________


Peters, P.J.

      Appeal from a judgment of the County Court of Schenectady
County (Catena, J.), rendered May 2, 2012, upon a verdict
convicting defendant of the crimes of rape in the first degree
and petit larceny.

      The victim was walking on a city street in Schenectady
County during the early morning hours of October 16, 2010 when
defendant approached her on a bicycle. He attempted to converse
with her, continued to follow her and eventually pushed her off
the sidewalk up a hill and onto a picnic table. He then
allegedly forced her to have sexual intercourse with him and took
her cell phone as he fled. Upon his indictment for rape in the
first degree and robbery in the third degree, a jury trial ensued
resulting in a verdict of guilty of rape in the first degree and
                                -2-                106576

petit larceny   as a lesser included offense of the robbery count.
Defendant was   sentenced to an aggregate prison term of 20 years
together with   postrelease supervision and directed to pay $450 in
restitution.    He appeals.

      Focusing primarily on the element of forcible compulsion,
defendant argues that the verdict was not supported by legally
sufficient evidence and was against the weight of the evidence.
"[T]he element of forcible compulsion is examined through the
state of mind produced in the victim, and relevant factors
include the age of the victim, the relative size and strength of
the defendant and victim, and the nature of the defendant's
relationship to the victim" (People v Sehn, 295 AD2d 749, 750
[2002], lv denied 98 NY2d 732 [2002] [internal quotation marks
and citations omitted]; accord People v Lancaster, 121 AD3d 1301,
1303 [2014], lv denied 24 NY3d 1121 [2015]).

      Proof at trial included testimony by the victim, who at the
time of the incident was a 21-year-old student home from college
for a short visit. After meeting some friends for drinks, she
decided to walk home and, while doing so, defendant began riding
a bicycle next to her and talking to her. The victim did not
know defendant, his presence made her uncomfortable and she
ultimately attempted to run the rest of the way home, but she
became winded and stopped. Defendant then grabbed her shoulders
and pushed her off the street and onto a picnic table. Although
the victim struggled to get away, she was unable to free herself
from the strength of his grip. As she continued to attempt to
fight him off, he grabbed her around the neck; the victim
explained that the more she fought, the more pressure he applied,
causing her to have trouble breathing. Defendant's anger and
intensity increased and, unable to free herself and fearing
"something worse" might happen, the victim stopped fighting as
defendant penetrated her while keeping his hand on her neck.
Defendant then fled and the victim – disheveled and crying
hysterically – made it home where she told her mother that she
had been raped. Her mother immediately called the police. The
investigation eventually led the police to defendant and,
although his statements were not consistent, he acknowledged
sexual intercourse with the victim, but claimed in one of his
statements that she did not say "no" until after sexual
                              -3-                106576

intercourse had commenced. Viewed in the light most favorable to
the People (see People v Danielson, 9 NY3d 342, 349 [2007]),
there is legally sufficient evidence of forcible compulsion, as
well as the remaining elements of rape in the first degree (see
People v Blackman, 90 AD3d 1304, 1306-1307 [2011], lv denied 19
NY3d 971 [2012]; People v McKee, 299 AD2d 575, 577 [2002], lv
denied 100 NY2d 596 [2003]).

      With respect to the weight of the evidence, a different
verdict would not have been unreasonable given defendant's
indication in one of his statements that the sex was consensual,
as well as his contention that the victim should have had more
severe bruising if the attack had occurred as she described.
Nonetheless, these issues turned in large measure on credibility
determinations, and we discern no reason to depart from the
jury's resolution of those matters (see People v McCray, 102 AD3d
1000, 1004 [2013], affd 23 NY3d 193 [2014]; People v Mitchell, 57
AD3d 1308, 1309 [2008]; People v Littebrant, 55 AD3d 1151, 1155
[2008], lv denied 12 NY3d 818 [2009]). Nor is the jury's
acquittal on the robbery charge inconsistent with a finding of
force in the rape given that, among other things, defendant's own
statement reflects that he removed the phone from the victim's
purse as he was leaving the scene following the sexual encounter
where force had been employed.1 After independently weighing the
evidence and considering it in a neutral light, we are
unpersuaded that the verdict was against the weight of the
evidence (see People v Hadfield, 119 AD3d 1224, 1226 [2014], lv
denied 24 NY3d 1002 [2014]; People v Hoppe, 96 AD3d 1157, 1159-
1160 [2012], lv denied 19 NY3d 1026 [2012]).

      Defendant also asserts that the prosecutor improperly
shifted the burden to him by remarks during summation that the
victim's testimony regarding consent was uncontradicted and that


    1
        We further observe that defendant does not contend that
the verdict is repugnant and, "[i]n such a situation, the Court
of Appeals has noted that 'it is imprudent to speculate
concerning the factual determinations that underlay the verdict'"
(People v Henry, 129 AD3d 1334, 1334 [2015], lv denied 26 NY3d
930 [2015], quoting People v Horne, 97 NY2d 404, 413 [2002]).
                              -4-                  106576

defendant's attorney was the only person claiming that consensual
sex had occurred. Shortly after the comment, County Court
interjected a curative instruction and the prosecutor then
clarified to the jury that she was comparing defendant's written
statement to the victim's testimony regarding consent. Viewing
the prosecutor's comment in the context of the entire summation
and noting County Court's prompt curative instruction, we find no
reversible error (see People v Mitchell, 129 AD3d 1319, 1321
[2015], lv denied 26 NY3d 1041 [2015]; People v Hatchcock, 96
AD3d 1082, 1085 [2012], lv denied 19 NY3d 997 [2012]; People v
Hathaway, 159 AD2d 748, 752 [1990]).

      Finally, defendant's challenge to the $450 restitution
awarded by County Court is not preserved for review since he
failed to request a hearing and did not otherwise object to such
amount at sentencing (see People v Bethea, 133 AD3d 1033, 1034
[2015]; People v Bressard, 112 AD3d 988, 989 [2013], lv denied 22
NY3d 1137 [2014]).

     Garry, Rose and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
