People v. Jenkins (220 A.D.2d 774, 1995)

—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Colabella, J.), rendered April 21, 1994, convicting him of rape in the third degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s conviction arises out of an incident in which he engaged in a sexual act with the complainant, a mentally-retarded female who was then 19 years old. Contrary to the defendant’s contention, there was legally sufficient evidence from which the trial court could have concluded that the complainant was "mentally defective” within the meaning of Penal Law § 130.00 (5), and that therefore she could not consent to the sexual act (see, People v Easley, 42 NY2d 50, 54). Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are without merit or unpreserved for appellate review. Bracken, J. P., Santucci, Joy and Friedmann, JJ., concur.