Opinion
2004-1304 QCR.
Decided June 6, 2006.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Gene Lopez, J.), rendered June 15, 2004, as amended May 27, 2005. The judgment convicted defendant, after a nonjury trial, of attempted sexual misconduct and sexual abuse in the third degree.
Judgment of conviction modified on the law and as a matter of discretion in the interest of justice by reducing the conviction of sexual abuse in the third degree to attempted sexual abuse in the third degree; as so modified, affirmed.
PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
Although defendant's claims of evidentiary insufficiency are not preserved for appellate review (CPL 470.05; People v. Hines, 97 NY2d 56, 62; People v. Gray, 86 NY2d 10, 19; People v. Udzinski, 146 AD2d 245, 250), we have, as to said claims, reviewed the record as a matter of discretion in the interest of justice with respect to the conviction of sexual abuse in the third degree (Penal Law § 130.55, a class B misdemeanor) and find the proof legally insufficient to establish defendant's actual "touching of the sexual or other intimate parts" of complainant's person (Penal Law § 130.00), the "sexual contact" element of sexual abuse in the third degree. Accordingly, the conviction of sexual abuse in the third degree is reduced to attempted sexual abuse in the third degree (Penal Law §§ 110.00, 130.55; e.g. People v. Clark, 159 Misc 2d 105, 107-108 [Crim Ct, Kings County 1993]), also a class B misdemeanor (Penal Law § 110.05; People v. Brown, 251 AD2d 694, 695). We further find the proof of attempted sexual misconduct (Penal Law §§ 110.00, 130.20) legally sufficient to establish defendant's guilt beyond a reasonable doubt, and, upon the exercise of our factual review power, that said verdict was not contrary to the weight of the evidence. Accordingly, we leave said conviction undisturbed. Since defendant could not properly be sentenced on the reduced offense more harshly than he was sentenced on the charge for which he was convicted, which sentence he has already served, it is unnecessary to remand the matter for resentencing.
We have considered defendant's remaining claims of error and find them unpreserved or without merit ( People v. Moreno, 70 NY2d 403, 406; People v. Dazi, 195 AD2d 571; People v. Volpe, 177 AD2d 524, 525).
Pesce, P.J., Weston Patterson and Belen, JJ., concur.