People v. Payne , 767 N.Y.S.2d 622 ( 2003 )

Judgment, Supreme Court, New York County (Michael Obus, J.), rendered April 30, 2001, convicting defendant, after a nonjury trial, of sexual abuse in the first degree, and sentencing him to a term of five years probation, with six months house arrest as a condition of probation, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (People v Bleakley, 69 NY2d 490 [1987]). There is no basis for disturbing the court’s rejection, after weighing conflicting expert testimony, of defendant’s insanity defense and his claims regarding lack of intent. The element of forcible compulsion was established by the evidence that when the victim woke up during the course of the assault, defendant continued his actions, kept his hand over her mouth and resisted her efforts to stop the assault (see People v McKinley, 124 AD2d 752 [1986], lv denied 70 NY2d 958 [1988]). Concur—Tom, J.P., Andrias, Saxe and Ellerin, JJ.