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

670
KA 11-01652
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PAUL IMES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID R. PANEPINTO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered May 17, 2011. The judgment convicted
defendant, upon a nonjury verdict, of rape in the first degree, sexual
abuse in the first degree, reckless endangerment in the first degree
and unlawfully fleeing a police officer in a motor vehicle in the
third degree.

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

     Memorandum: On appeal from a judgment convicting him, following
a nonjury trial, of rape in the first degree (Penal Law § 130.35 [1]),
sexual abuse in the first degree (§ 130.65 [1]), reckless endangerment
in the first degree (§ 120.25), and unlawfully fleeing a police
officer in a motor vehicle in the third degree (§ 270.25), defendant
contends that the verdict is against the weight of the evidence
insofar as Supreme Court found him guilty of rape and sexual abuse.
We reject that contention. Defendant specifically contends that a
finding that any sexual contact he had with the victim was consensual
would not have been unreasonable, particularly in view of the
questionable credibility of the victim. “[T]he appropriate standard
for evaluating a weight of the evidence argument on appeal is the same
regardless of whether the finder of fact was a judge or a jury . . .
because those who see and hear the witnesses can assess their
credibility and reliability in a manner that is far superior to that
of reviewing judges who must rely on the printed record” (People v
Lane, 7 NY3d 888, 890). Viewing the evidence in light of the elements
of the crimes of rape and sexual abuse in this nonjury trial (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). “Although there was conflicting
testimony and thus ‘an acquittal would not have been unreasonable’ ”
                                 -2-                          670
                                                        KA 11-01652

(People v Burroughs, 57 AD3d 1459, 1460, lv denied 12 NY3d 756), the
weight of the credible evidence supports the verdict (see generally
Bleakley, 69 NY2d at 495). We further conclude that the sentence is
not unduly harsh or severe.




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
