People v. Holmes
127 A.D.2d 993
N.Y. App. Div.
1987
Check Treatment

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of rape in the first degree, burglary in the second degree, robbery in the third degree, and unlawful imprisonment in the second degree, and sentencing him as a persistent felony offender to 20 years to life. The convictions arise out of an incident in which defendant broke into the home of a 65-year-old woman and robbed and raped her. Defendant raises 10 issues on appeal; we conclude that none has merit.

The verdict was not against the weight of the evidence; the testimony of the victim was sufficient to identify the defendant as the intruder. Since there were no objections or requests to charge, defendant has waived any alleged errors in the court’s instructions. In any event, the court’s alibi charge *994and its instructions concerning forcible compulsion and identification were adequate. The evidence of forcible compulsion was sufficient; forcible compulsion can be inferred from defendant’s threat to hurt the victim if she did not cooperate and from his act in breaking into her home at night. Defendant was not denied the effective assistance of counsel and was not deprived of a fair trial by prosecutorial misconduct. The motion to set aside the verdict on grounds of newly discovered evidence was properly denied. The hospital records were in existence prior to trial and thus were not newly discovered. The additional alibi testimony was cumulative and also could have been adduced at trial. The evidence purporting to show misidentification was weak and highly speculative and thus would not have been likely to produce a different result. Finally, the determination that the defendant was a persistent felony offender was correct. The People sustained their burden of establishing defendant’s predicate convictions and defendant failed to show that they were obtained in violation of his constitutional rights. (Appeal from judgment of Supreme Court, Onondaga County, Gorman, J. — rape, first degree, and other offenses.) Present — Dillon, P. J., Callahan, Denman, Pine and Lawton, JJ.