Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County, rendered August 4, 2003 after a nonjury trial (William Mogulescu, J.) convicting him of patronizing a prostitute in the fourth degree (Penal Law § 230.03), and imposing sentence.

PER CURIAM:

Judgment of conviction rendered August 4, 2003 (William Mogulescu, J.) affirmed.

Evidence at trial was that defendant stopped his car in a remote area of the Bronx known for its high incidence of prostitution-related activity, and agreed to pay a female undercover police officer $20 for oral sex. To the extent that defendant now challenges his conviction of fourth-degree patronizing a prostitute (Penal Law § 220.03) on legal sufficiency grounds, his claims are unpreserved for appellate review (see People v Gray, 86 NY2d 10 [1995]) and lacking in merit. Moreover, upon an independent review of the facts, we are satisfied that defendant's conviction was not against the weight of the evidence. Issues of [*2]credibility, including inconsistencies in testimony, were considered by the trial court, as fact finder, and there is no basis for disturbing its determinations (see People v Gaimari 176 NY 84, 94 [1903]). That defendant's voice was not audible on the tape of the Kel transmission — received into evidence without objection at trial and the admissibility of which is not challenged on appeal — does not undermine the court's implicit finding that defendant assented to the undercover officer's solicitation, a finding otherwise amply supported by the credited and unrefuted police testimony. The loss of the audiotape neither precludes adequate appellate review (see People v Yavru-Sakuk, 98 NY2d 56, 59-60 [2002]) nor, contrary to defendant's contention, warrants an inference "adverse" to the People.

This constitutes the decision and order of the court.
Decision Date: January 06, 2005