The People of the State of New York, Respondent, v. Bobby Palmer, Appellant

The People of the State of New York, Respondent, v Bobby Palmer, Appellant. [623 NYS2d 157] [MAJORITY] —Appeal by the defendant from a judgment of the County Court, Suffolk County (Tisch, J.), rendered June 10, 1993, convicting him of rape in the first degree (two counts), sexual abuse in the first degree (three counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence. Ordered that the judgment is modified, on the law, by reversing the defendant’s conviction of rape in the first degree under count number three, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed. Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally insufficient to establish the defendant’s guilt of rape in the first degree under the third count of the indictment. Specifically, there was legally insufficient evidence to establish beyond a reasonable doubt that the defendant had sexual intercourse with the complaining witness in September or October 1991 (see, Penal Law §§ 130.00, 130.35). The defendant’s remaining contentions are either unpreserved for appellate review or without merit. O’Brien, J. P., Lawrence, Krausman and Florio, JJ., concur.