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

1303
KA 11-00637
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LUIS P. ACOSTA, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered March 15, 2011. The judgment
convicted defendant, upon a jury verdict, of attempted criminal sexual
act in the first degree.

     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 attempted criminal sexual act in the first degree (Penal
Law §§ 110.00, 130.50 [1]), defendant contends that the evidence is
legally insufficient to establish the element of forcible compulsion
beyond a reasonable doubt. Defendant failed to preserve that
contention for our review by a motion for a trial order of dismissal
specifically directed at that alleged insufficiency, and he also
failed to renew his motion after presenting evidence (see People v
Bowman, 113 AD3d 1100, 1100, lv denied 24 NY3d 1082). In any event,
we conclude that the evidence, viewed in the light most favorable to
the People, is legally sufficient to support defendant’s conviction
(see generally People v Danielson, 9 NY3d 342, 349). Moreover,
viewing the evidence in light of the elements of the crime as charged
to the jury (see id.), we reject defendant’s further contention that
the verdict is against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). Although an acquittal would not
have been unreasonable, where, as here, “witness credibility is of
paramount importance to the determination of guilt or innocence, [we]
must give [g]reat deference . . . [to the jury’s] opportunity to view
the witnesses, hear the testimony and observe demeanor” (People v
Harris, 15 AD3d 966, 967, lv denied 4 NY3d 831 [internal quotation
marks omitted]; see Bleakley, 69 NY2d at 495). The jury credited the
victim’s testimony concerning defendant’s use of physical force in his
attempt to have her perform oral sex on him, and we perceive no basis
                                 -2-                          1303
                                                         KA 11-00637

in the record to disregard the jury’s credibility determination in
that regard.

     Defendant’s contention that the prosecutor committed misconduct
is unpreserved inasmuch as Supreme Court sustained defense counsel’s
objections to the prosecutor’s questions at issue and gave the jury a
curative instruction which, in the absence of further objection or a
request for a mistrial, “must be deemed to have corrected the error to
the defendant’s satisfaction” (People v Heide, 84 NY2d 943, 944).
Defendant’s further contention that the court’s Sandoval ruling
constitutes an abuse of discretion is similarly unpreserved (see
People v Riley, 117 AD3d 1495, 1495-1496, lv denied 24 NY3d 1088). We
decline to exercise our power to review those contentions as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).

     Contrary to defendant’s contention, we conclude that the court
properly instructed the jury with respect to the element of forcible
compulsion for criminal sexual act in the first degree, “even though
it did not repeat the definition of th[at] term[,] which it had
provided to the jury during its earlier charge” with respect to rape
in the first degree (People v Howard, 214 AD2d 418, 418, lv denied 86
NY2d 843).

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




Entered:   December 31, 2015                    Frances E. Cafarell
                                                Clerk of the Court
