Opinion
2011-09-30
The PEOPLE of the State of New York, Respondent,v.Rodney M. NEWMAN, Defendant–Appellant.
Lipsitz Green Scime Cambria LLP, Buffalo (Michael S. Deal of Counsel), for Defendant–Appellant.Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
Lipsitz Green Scime Cambria LLP, Buffalo (Michael S. Deal of Counsel), for Defendant–Appellant.Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of promoting a sexual performance by a child (Penal Law § 263.15), forcible touching (§ 130.52), and two counts each of unlawful surveillance in the second degree (§ 250.45[2] ) and endangering the welfare of a child (§ 260.10[1] ). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction because he failed to renew his motion for a trial order of dismissal after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, that contention is without merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
With respect to the conviction of promoting a sexual performance by a child, the People established that defendant knew “the character and content” of the performance despite his absence during the recording of the sexual act (
Penal Law § 263.15). With respect to the conviction of two counts of unlawful surveillance in the second degree, both applicable to the first victim, the People established that defendant made the recordings for his own “sexual arousal or sexual gratification” (§ 250.45[2] ). That element of the crime could be inferred from defendant's conduct in placing surveillance cameras in the first victim's bathroom and bedroom ( see generally People v. Willis, 79 A.D.3d 1739, 1740, 917 N.Y.S.2d 788, lv. denied 16 N.Y.3d 864, 923 N.Y.S.2d 426, 947 N.E.2d 1205). With respect to the conviction of forcible touching and the second count of endangering the welfare of a child, applicable to the second victim, we reject defendant's contention that the second victim's testimony was incredible as a matter of law. It cannot be said that his testimony was “manifestly untrue, physically impossible, contrary to experience, or self-contradictory” ( People v. Harris, 56 A.D.3d 1267, 1268, 868 N.Y.S.2d 448, lv. denied 11 N.Y.3d 925, 874 N.Y.S.2d 10, 902 N.E.2d 444; see People v. Moore [Appeal No. 2], 78 A.D.3d 1658, 1659–1660, 912 N.Y.S.2d 825). With respect to the conviction of the first count of endangering the welfare of a child, applicable to the first victim, the People established that the recordings would be viewed by him. In addition, 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 further 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). The credibility of the witnesses was an issue for the jury to determine, and we perceive no basis for disturbing that determination ( see People v. Massey, 61 A.D.3d 1433, 877 N.Y.S.2d 589, lv. denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018).
Also contrary to defendant's contention, County Court did not err in admitting a videotape in evidence. There were “sufficient assurances of the identity and unchanged condition of the evidence ..., and thus any alleged gaps in the chain of custody went to the weight of the evidence, not its admissibility” ( People v. Kennedy, 78 A.D.3d 1477, 1478, 910 N.Y.S.2d 602, lv. denied 16 N.Y.3d 798, 919 N.Y.S.2d 515, 944 N.E.2d 1155; see People v. Hawkins, 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946). Defendant failed to preserve for our review his contention that the court erred in failing to conduct a Ventimiglia hearing to determine the admissibility of certain testimony concerning defendant's prior bad acts ( see People v. Powell, 303 A.D.2d 978, 979, 755 N.Y.S.2d 915, lv. denied 100 N.Y.2d 565, 763 N.Y.S.2d 822, 795 N.E.2d 48, 1 N.Y.3d 541, 775 N.Y.S.2d 246, 807 N.E.2d 296; People v. Trembling, 298 A.D.2d 890, 891–892, 748 N.Y.S.2d 631, lv. denied 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579). Defendant also failed to preserve for our review his contention that the court's instructions to the jury were improper ( see People v. Green, 35 A.D.3d 1211, 1212, 825 N.Y.S.2d 891, lv. denied 8 N.Y.3d 985, 838 N.Y.S.2d 488, 869 N.E.2d 664). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ).
We agree with defendant, however, that the court erred in directing that the definite sentence imposed on the misdemeanor count of forcible touching shall run consecutively to the indeterminate sentences imposed on the felony counts ( see Penal Law § 70.35). “The offense underlying the definite sentence was committed prior to the date on which the [in]determinate sentence[s were] imposed, and thus the definite sentence must run concurrently”
with those sentences ( People v. Glinski [Appeal No. 2], 37 A.D.3d 1188, 1189, 829 N.Y.S.2d 394; see People v. Leabo, 84 N.Y.2d 952, 953, 620 N.Y.S.2d 820, 644 N.E.2d 1376). We therefore modify the judgment accordingly. Finally, the sentence as modified is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that the definite sentence imposed on count four of the indictment shall run concurrently with the indeterminate sentences and as modified the judgment is affirmed.