The evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621), establishes that defendant subjected both child victims to sexual contact as that term is defined in Penal Law § 130.00 (3) (see People v Hoffert, 125 AD3d 1386, 1387-1388, lv denied 25 NY3d 990; see also Matter of Daniel R. [Lucille R.], 70 AD3d 839, 841). Moreover, "[i]t is well settled that, [b]ecause the question . . . whether a person was seeking sexual gratification is generally a subjective inquiry, it can be inferred from the conduct of the perpetrator' " (Hoffert, 125 AD3d at 1388; see People v Chrisley, 126 AD3d 1495, 1496, lv denied 26 NY3d 1007; People v Anthony D., 259 AD2d 1011, 1011, lv denied 93 NY2d 1001). The inference that defendant was seeking sexual gratification is " clearly appropriate' " where, as here, a nonrelative touches the intimate parts of a child (People v Watson, 281 AD2d 691, 698, lv denied 96 NY2d 925; see § 130.00 [3]; People v Fuller, 50 AD3d 1171, 1175, lv denied 11 NY3d 788). Inasmuch as the evidence is legally sufficient to support the conviction of sexual abuse in the first degree, "it necessarily also [is] legally sufficient with respect to the conviction of endangering the welfare of a child" (People v Scerbo, 74 AD3d 1730, 1732, lv denied 15 NY3d 757). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see Bleakley, 69 NY2d at 495).
The allegation of sexual gratification also formed the basis of endangering the welfare of a child, the other count of which defendant was convicted at the first trial ( see People v Guerra, 178 AD2d 434, 435). A person is guilty of endangering the welfare of a child under Penal Law § 260.10 (1) when "[h]e [or she] knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child" less than 17 years old. With respect to the legal sufficiency of the evidence at the first trial concerning the element of sexual gratification, the evidence established that defendant touched the victim's stomach, then moved his hands to the victim's vaginal area and moved his hand as he touched that area. Sexual gratification may be inferred from defendant's conduct ( see People v Graves, 8 AD3d 1045, lv denied 3 NY3d 674; People v Anthony D., 259 AD2d 1011, lv denied 93 NY2d 1001). Although defendant testified that he did not knowingly have sexual contact with any of the children and thus contends that any contact was merely incidental, the jury was entitled to discredit that testimony. Indeed, "the fact that the evidence might be subject to an interpretation different from that found by the jury does not mean that the People failed to prove their case beyond a reasonable doubt" ( People v Shoemaker, 227 AD2d 720, 721, lv denied 88 NY2d 1024). Because the evidence at the first trial was legally sufficient with respect to the conviction of sexual abuse, it necessarily also was legally sufficient with respect to the conviction of endangering the welfare of a child.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of sexual abuse in the first degree (Penal Law § 130.65) and endangering the welfare of a child (§ 260.10 [1]). We reject the contention of defendant that the evidence is legally insufficient to support the conviction of sexual abuse in the first degree because the People failed to prove that he touched the victim's penis for the purpose of gratifying sexual desire (§ 130.00 [3]). "The element of sexual gratification `may be inferred from [defendant's] conduct itself'" ( People v. Schenk, 294 A.D.2d 914, 914, lv denied 98 N.Y.2d 702, quoting People v. Anthony D., 259 A.D.2d 1011, 1011, lv denied 93 N.Y.2d 1001). The verdict is not against the weight of the evidence ( see People v. Boyce, 2 A.D.3d 984, 985-986).
Independent evidence established that at the times of the sexual assaults, the defendant was the sole adult present at the crime scenes while the victim's mother attended Parent-Teacher Association meetings ( see People v. Lipsky, 57 N.Y.2d 560). Furthermore, the victim's mother testified regarding her daughter's timely outcry ( see People v. Anthony D., 259 A.D.2d 1011; People v. Bott, 234 A.D.2d 625, 626). Contrary to the opinion of our dissenting colleagues, we are not persuaded that the defendant was deprived of his right to a fair trial.
We reject defendant's contention that the evidence is legally insufficient to support the conviction ( see generally People v. Bleakley, 69 N.Y.2d 490, 495). The element of sexual gratification "may be inferred from [defendant's] conduct itself" ( People v. Anthony D., 259 A.D.2d 1011, 1011, lv denied 93 N.Y.2d 1001). Defendant has failed to preserve for our review his contentions that County Court erred in instructing potential jurors during voir dire and erred in denying his request to charge sexual abuse in the third degree (§ 130.55) as a lesser included offense of sexual abuse in the first degree ( see CPL 470.05), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). We reject defendant's further contention that the sentence is unduly harsh or severe.
Whether a child witness is competent to testify under oath is a legal determination for the court that does not involve the jury ( see, People v. Morales, 80 N.Y.2d 450, 453-454; People v. Wilcox, 185 A.D.2d 676, lv denied 80 N.Y.2d 977; see also, People v. Peters, 242 A.D.2d 930, lv denied 91 N.Y.2d 896) or implicate a defendant's Federal Confrontation Clause rights ( see, Kentucky v. Stincer, 482 U.S. 730, 744; People v. Morales, supra, at 453-454). Upon our review of the record, we conclude that the evidence is legally sufficient to support the conviction ( see, People v. Bockeno, 124 A.D.2d 1008, lv denied 69 N.Y.2d 744). The People introduced evidence on both counts that defendant touched the victim's genital area for the purpose of sexual gratification ( see, Penal Law § 130.00; § 130.65 Penal [3]; People v. Anthony D., 259 A.D.2d 1011, lv denied 93 N.Y.2d 1001; People v. Bockeno, supra). The court's charge did not limit the People to proving that defendant touched the victim's vagina according to the anatomically correct definition of the word.