We reject that contention. We note that a different verdict would not have been unreasonable inasmuch as this case rests largely on the jury's credibility findings with respect to the testimony of the victim ( see People v. Hutzler, 270 A.D.2d 934, 934, 706 N.Y.S.2d 807,lv. denied94 N.Y.2d 948, 710 N.Y.S.2d 5, 731 N.E.2d 622;see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Nevertheless, viewing the evidence in light of those crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), and affording the requisite “great deference to the jury given its opportunity to view the witnesses” ( Hutzler, 270 A.D.2d at 934, 706 N.Y.S.2d 807;see People v. Barreto, 64 A.D.3d 1046, 1048–1049, 882 N.Y.S.2d 594,lv. denied13 N.Y.3d 834, 890 N.Y.S.2d 450, 918 N.E.2d 965), we conclude that the jury did not fail to give the evidence the weight it should be accorded ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Contrary to the contention of defendant, the jury did not err in crediting the testimony of the People's medical expert with respect to physical evidence of sexual contact with the victim, a child, over the testimony of the defense expert on th
In any event, that contention lacks merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict is against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We reject defendant's further contention that the imposition of consecutive sentences for criminal possession of marihuana in the second degree and criminal sale of marihuana in the second degree is harsh and excessive ( cf. People v. Hutzler, 270 A.D.2d 934, 936, 706 N.Y.S.2d 807, lv. denied 94 N.Y.2d 948, 710 N.Y.S.2d 5, 731 N.E.2d 622; People v. Tovar, 258 A.D.2d 943, 685 N.Y.S.2d 528, lv. denied 93 N.Y.2d 930, 693 N.Y.S.2d 513, 715 N.E.2d 516). Defendant failed to preserve for our review his contention that he was penalized for exercising his right to a jury trial inasmuch as he failed to raise that contention at the time of sentencing ( see e.g. People v. Stubinger, 87 A.D.3d 1316, 1317, 929 N.Y.S.2d 813; People v. Brink, 78 A.D.3d 1483, 1485, 910 N.Y.S.2d 606, lv. denied 16 N.Y.3d 742, 917 N.Y.S.2d 623, 942 N.E.2d 1048, 16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180). In any event, that contention is without merit.
CPL 20.20 codifies the rule that, "for [New York] to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State" ( People v McLaughlin, 80 NY2d 466, 471). Pursuant to CPL 20.20 (1) (a), a person may be prosecuted in New York when an element of the offense occurred in the state. Endangering the welfare of a child is considered a continuing offense because it "does not necessarily contemplate a single act . . . [Rather], a defendant may be guilty of [that offense] by virtue of a series of acts, none of which may be enough by itself to constitute the offense, but each of which when combined make out the crime" ( People v Keindl, 68 NY2d 410, 421, rearg denied 69 NY2d 823; see People v Hutzler, 270 AD2d 934, 935-936, lv denied 94 NY2d 948). Here, defendant began abusing her son in New York and continued in that course of conduct in Massachusetts.
it reduced to 50 years pursuant to Penal Law § 70.30) ( see People v Nickel, 14 AD3d 869, 872-873, lv denied 4 NY3d 834; compare People v Kuklinski, 24 AD3d 1036, 1037, lv denied 7 NY3d 758; People v Brown, 24 AD3d 884, 888, lv denied 6 NY3d 832; People v Williams, 24 AD3d 882, 884, lv denied 6 NY3d 854; People v Love, 307 AD2d 528, 533, lv denied 100 NY2d 643; People v Chilson, 285 AD2d 733, 735-736, lv denied 97 NY2d 640; People v Fox, 274 AD2d 665, 666; People v Smith, 272 AD2d 713, 716, lv denied 95 NY2d 871). While the People argue that the sentence should not be reduced by this Court, we are compelled to observe that the People had agreed to a plea deal of time served and probation prior to this trial ( see n supra). We therefore modify defendant's sentence in the interest of justice by directing that the sentences for the four sodomy counts run concurrently to each other and to the sentences for the four consecutive sexual abuse counts ( see e.g. People v Nickel, supra at 873; People v Hutzler, 270 AD2d 934, 936, lv denied 94 NY2d 948; People v Joye, 198 AD2d 21, lv denied 83 NY2d 854; People v Tortorice, 142 AD2d 916, 919). Defendant will thus serve an aggregate sentence of 28 years in prison for his crimes, a sentence which appropriately takes into account the heinous nature of his conduct ( compare People v White, 27 AD3d 884, 887, lv denied 7 NY3d 764; People v Dalton, 27 AD3d 779, 783, lv denied 7 NY3d 754; People v Kuklinski, supra; People v Brown, supra; People v Chilson, supra) We have reviewed defendant's remaining contentions and find them without merit.
" (CPL 320.20 [d]) does not contemplate any threshold minimum time for deliberation. Additionally, the court was not required to provide a rationale or basis for its determination any more than a jury would be for its verdict ( see People v. Carter, 63 NY2d 530, 539). Lastly, defendant contends that his sentence, totaling over 50 years, is harsh and excessive. Given defendant's efforts to access particularly vulnerable children and the impact of his conduct upon the children, we find that a maximum sentence for defendant's most serious offense against each child is justified. Nevertheless, in part because defendant has no criminal history, we exercise our discretion to modify the sentence in the interest of justice ( see CPL 470.15 [b]), by directing that the multiple charges concerning one victim run concurrently to each other but consecutively to the conviction on the single charge concerning the other victim ( compare People v. Thornton, 4 AD3d 561, 563-564, lv denied 2 NY3d 808; People v. Hutzler, 270 AD2d 934, 936, lv denied 94 NY2d 948). Peters, J.P. (concurring in part and dissenting in part).
Defendant presented a plausible alibi defense with respect to the alleged time frames. Under all of the circumstances, "we conclude that the indictment, as narrowed by the bill of particulars, reasonably serve[d] the function of protecting defendant's constitutional right to be informed of the nature and cause of the accusation" ( People v. Hutzler, 270 A.D.2d 934, 935, lv denied 94 N.Y.2d 948 [internal quotation marks omitted]; see People v. Morris, 61 N.Y.2d 290, 294-295). Defendant failed to preserve for our review by timely objection his contention that misconduct by the prosecutor during summation deprived him of a fair trial ( see CPL 470.
We reject the contention of defendant that certain counts of the indictment, as amplified by the bill of particulars, lacked sufficient specificity to enable him to prepare a defense. The two counts concerning "on or about Halloween 1996" are sufficiently specific ( see generally People v. Keindl, 68 N.Y.2d 410, 416-417, rearg denied 69 N.Y.2d 823; People v. Risolo 261 A.D.2d 921), as are the two counts involving the seasonal time frame of "on or about during the fall of 1998" ( see People v. Melfa, 244 A.D.2d 857, 858, lv denied 91 N.Y.2d 895; People v. Smith, 178 A.D.2d 918, lv denied 79 N.Y.2d 953; see also People v. Smith, 272 A.D.2d 713, 714, lv denied 95 N.Y.2d 871; People v. Keefer, 262 A.D.2d 791, 792, lv denied 94 N.Y.2d 824). Finally, the time frame "starting in 1993 through May of 1999" is sufficiently specific for the count charging the continuing crime of endangering the welfare of a child ( see People v. Latouche, 303 A.D.2d 246, lv denied 100 N.Y.2d 595; People v. Hutzler, 270 A.D.2d 934, 935-936, lv denied 94 N.Y.2d 948). Defendant has not preserved for our review his contention that the evidence is legally insufficient with respect to counts 3, 4, and 10 ( see People v. Gray, 86 N.Y.2d 10, 19; People v. Tutt, 305 A.D.2d 987, 988, lv denied 100 N.Y.2d 588).
Memorandum: According great deference to the jury's determination after viewing the witnesses, we conclude that the verdict rejecting defendant's justification defense is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495; People v. Hutzler, 270 A.D.2d 934, lv denied 94 N.Y.2d 948). We further conclude that the conviction of murder in the second degree (Penal Law § 125.25 [depraved indifference murder]) is supported by legally sufficient evidence ( see, People v. Bleakley, supra, at 495).