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

959
KA 12-01347
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM ALLEN, ALSO KNOWN AS SEAN GILMORE,
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 (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered July 17, 2012. The judgment convicted defendant, upon a
jury verdict, of rape in the first degree, sexual abuse in the first
degree and rape in the third degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of rape in the first degree (Penal Law § 130.35
[1]), sexual abuse in the first degree (§ 130.65 [1]), and rape in the
third degree (§ 130.25 [3]). Viewing the evidence in light 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 People v Bleakley, 69 NY2d 490, 495). “[R]esolution of
issues of credibility, as well as the weight to be accorded to the
evidence presented, are primarily questions to be determined by the
jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]) and “[w]here, as here, the
defendant’s challenge is focused upon the credibility of the
witnesses, we [must] accord ‘great deference to the resolution of
credibility issues by the trier of fact 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 Cole, 111 AD3d 1301, 1302, lv denied ___
NY3d ___ [June 25, 2014]).

     Contrary to the People’s contention, we conclude that defendant
preserved his challenge to County Court’s Sandoval ruling (cf. People
v Manning, 286 AD2d 690, 690, lv denied 97 NY2d 684), but we
nevertheless conclude that defendant’s challenge lacks merit (see
                                 -2-                           959
                                                         KA 12-01347

People v Hayes, 97 NY2d 203, 207-208; People v Ayala, 27 AD3d 1087,
1089, lv denied 6 NY3d 892). We reject defendant’s further contention
that the court erred in refusing to suppress statements that he made
to the police. “The suppression hearing testimony established that
defendant’s initial statement[] [was] made spontaneously and [was] not
in response to any police questioning or its functional equivalent,
and defendant’s later statements were made after defendant was advised
of his Miranda rights and had waived them” (People v Burnett, 41 AD3d
1201, 1202; see People v Irvin, 111 AD3d 1294, 1295; see generally
People v Thomas, 22 NY3d 629, 641-642). Finally, we conclude that the
sentence is not unduly harsh or severe.




Entered:   September 26, 2014                  Frances E. Cafarell
                                               Clerk of the Court
