
    The People of the State of New York, Respondent, v Russell Townes, Appellant.
   Judgment of Supreme Court, New York County (Richard B. Lowe, III, J.), rendered September 22, 1988, convicting defendant, after a jury trial, of rape in the first degree and sentencing him to an indeterminate term of imprisonment of 7 to 21 years, unanimously affirmed.

Defendant was found guilty of brutally raping, at knife-point, the 21-year-old victim, whom he had known since childhood, following a date. There is no basis upon which to disturb the jury’s findings regarding the credibility of the victim’s testimony. While the medical testimony did not conclusively confirm the occurrence of sexual intercourse, it was not inconsistent with penetration. The physician’s expert opinion was admittedly inconclusive due to the time that had elapsed prior to examination. The ultimate determination was clearly a matter which fell within the jury’s province.

With respect to the jury’s request to examine notes sent from the victim to the defendant which were not admitted into evidence, the communication between the court and the jury outside defendant’s presence did not affect a substantial right of the defendant or material part of the trial and does not require reversal, particularly inasmuch as defendant was aware of the note before the verdict was taken and failed to register an objection until after the jury was discharged (see, People v Van, 161 AD2d 326). Defendant’s sentence is not unduly harsh, given the nature of the crime, the vicious manner in which it was carried out, defendant’s use of a weapon, his threats against the victim’s sister, and his lack of remorse.

Concur — Kupferman, J. P., Ellerin, Wallach, Smith and Rubin, JJ.  