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
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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
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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]). 
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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