| People v Gaston |
| 2017 NY Slip Op 00013 |
| Decided on January 3, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on January 3, 2017
Friedman, J.P., Sweeny, Richter, Manzanet-Daniels, Kapnick, JJ.
2604 3680/10
v
Henry Gaston, Defendant-Appellant.
Howard D. Simmons, P.C., New York (Howard D. Simmons of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered December 6, 2011, convicting defendant, after a jury trial, of rape in the first degree, sexual abuse in the first degree, burglary as a sexually motivated felony in the second degree, burglary in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree, and sentencing him to an aggregate term of 20 years, unanimously affirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. Although the People's case was based in part on circumstantial inferences, those inferences were compelling, and the evidence established all the required elements, including the victim's incapacity to consent by reason of physical helplessness during the sex crimes (see Penal Law § 130.35[2]) and the unlawful entry element of burglary.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 3, 2017
CLERK