Opinion
KA 01-01322
March 21, 2003.
Appeal from a judgment of Niagara County Court (Sperrazza, J.), entered May 15, 2001, convicting defendant after a jury trial of, inter alia, sexual abuse in the first degree (two counts).
JOSEPH F. TOWNSEND, PUBLIC DEFENDER, LOCKPORT (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of two counts of sexual abuse in the first degree (Penal Law former § 130.65 [3]) and three counts of endangering the welfare of a child (§ 260.10 [1]). Contrary to the contention of defendant, he was not deprived of a fair trial when County Court questioned two witnesses regarding their testimonial capacity in the presence of the jury (see People v. Pochily, 255 A.D.2d 695, 696, lv denied 93 N.Y.2d 856; People v. Gallow, 171 A.D.2d 1061, 1062, lv denied 77 N.Y.2d 995; see also People v. Peters, 242 A.D.2d 930, 931, lv denied 91 N.Y.2d 896; see generally CPL 60.20). Defendant waived his challenge to the legal sufficiency of the evidence by failing to renew his motion to dismiss on that ground at the close of his case (see People v. Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678; People v. Hill, 300 A.D.2d 1125 [Dec. 30, 2002]; People v. Kerner, 299 A.D.2d 913). The verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495). Defendant failed to preserve for our review his contention that the court erred in admitting the testimony of a witness concerning defendant's prior bad acts and uncharged crimes without conducting a Ventimiglia hearing (see 470.05 [2]; People v. Vaughn, 291 A.D.2d 915, lv denied 97 N.Y.2d 762; People v. Carter, 263 A.D.2d 958, lv denied 94 N.Y.2d 820; People v. Preston, 255 A.D.2d 530, 530-531, lv denied 93 N.Y.2d 976). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Finally, the sentence is neither unduly harsh nor severe.