Opinion
KA 02-00050.
Decided March 19, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered December 13, 2001. The judgment convicted defendant, after a nonjury trial, of sexual abuse in the first degree and endangering the welfare of a child.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, HURLBUTT, AND GORSKI, 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 nonjury trial of sexual abuse in the first degree (Penal Law § 130.65) and endangering the welfare of a child (§ 260.10 [1]). Contrary to defendant's contention, the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495). "The credibility determinations of [Supreme] Court are entitled to great deference . . ., and there is no basis to conclude that the court failed to give the evidence the weight that it should be accorded" ( People v. Scott, 289 A.D.2d 974, 975, lv denied 97 N.Y.2d 733, 735). We reject the further contention of defendant that, in acquitting him of sodomy in the first degree (former § 130.50 [3]), the court necessarily found that the eight-year-old victim was not worthy of belief and thus that the verdict is repugnant. "A verdict on a multiple count indictment is repugnant when a defendant is acquitted on one count which is conclusive as to a necessary element of another crime of which he is convicted, thus negating a necessary element of the latter count" ( People v. Ladson, 209 A.D.2d 640, 640, lv denied 85 N.Y.2d 911; see People v. James, 249 A.D.2d 919, lv denied 92 N.Y.2d 899). Here, defendant's acquittal of sodomy "did not negate any essential element" of either sexual abuse in the first degree or endangering the welfare of a child ( James, 249 A.D.2d at 919). Also contrary to defendant's contention, the sentence is neither unduly harsh nor severe.