People v. Prophet

*888left to the trier of the facts (see, People v Christian, 139 AD2d 896, lv denied 71 NY2d 1024). Defendant’s sentence is not harsh and excessive and should not be modified in the interest of justice. (Appeal from judgment of Supreme Court, Erie County, Doyle, J.—sexual abuse, first degree.) Present—Callahan, J. P., Denman, Green, Balio and Davis, JJ.

Judgment unanimously affirmed. Memorandum: Defendant was convicted, after a bench trial, of sexual abuse in the first degree, but acquitted of rape in the first degree and assault in the third degree. Defendant argues that his conviction is against the weight of the evidence because, in order to acquit defendant of rape and assault, the court necessarily must have concluded that the complainant’s testimony was completely incredible. We disagree. The sexual abuse occurred earlier in time and in a different location from the alleged rape and assault, and the court could have believed the complainant’s testimony concerning the earlier incident, but not believed her testimony concerning the later incident. Matters of credibility are best