People v. Rueben , 55 A.D.2d 588 ( 1976 )

Judgment of conviction after jury trial, Supreme Court, Bronx County, rendered February 25, 1974, unanimously modified in the interest of justice and the exercise of discretion, to reduce defendant-appellant’s sentence from 5 to 15 years on the rape count to 3 to 12 years, and otherwise affirmed. Nothing of merit is present on appeal, and no trial error occurred which affected the outcome. The issue presented for the jury’s consideration was merely one of credibility and, though neither complainant nor defendant-appellant appears a model of propriety, there was sufficient room for the jury to decide as it did, particularly in consideration of the corroborative evidence. However, we agree with the Trial Justice’s belated realization (CPL 430.10) that the sentence was too severe, and, without objection by the prosecutor, we accomplish in this regard what the trial court was barred from doing. Concur—Stevens, P. J., Markewich, Kupferman, Silverman and Lane, JJ.