People v Green

People v Green 2007 NY Slip Op 06760 [43 AD3d 709] September 18, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 7, 2007

The People of the State of New York, Respondent,
v
Eric Green, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Gayle Pollack of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Jung Park of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered April 15, 2005, as amended June 6, 2005, convicting defendant, after a jury trial, of rape in the first degree (three counts) and sodomy in the third degree, and sentencing him to an aggregate term of nine years, unanimously affirmed.

Defendant's challenges to the court's charge and the prosecutor's summation, including his constitutional claims, are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find no basis for reversal. The charge properly conveyed the applicable legal principles with respect to forcible compulsion, including the aspect of intimidation. The court made it abundantly clear to the jury that defendant was charged with forcible rape, and there is no reasonable possibility that the jury could have been misled into believing that the victim's age satisfied the element of force (see generally People v Fields, 87 NY2d 821, 823 [1995]; People v Coleman, 70 NY2d 817 [1987]). The challenged portions of the prosecutor's summation did not deprive defendant of a fair trial (see People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

Defendant's claim regarding the imposition of a mandatory surcharge and fees is [*2]unavailing (see People v Lemos, 34 AD3d 343 [2006], lv denied 8 NY3d 924 [2007]).

We perceive no basis for reducing the sentence. Concur—Andrias, J.P., Buckley, Catterson, Malone and Kavanagh, JJ.