Opinion
November 12, 1999
Appeal from Judgment of Oneida County Court, Donalty, J. — Sodomy, 1st Degree.
PRESENT: GREEN, J. P., LAWTON, PIGOTT, JR., HURLBUTT AND CALLAHAN, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum:
Defendant contends that his conviction of sodomy in the first degree (Penal Law § 130.50), use of a child in a sexual performance (Penal Law § 263.05), promoting a sexual performance by a child (Penal Law § 263.15) and rape in the second degree (Penal Law § 130.30) is not supported by legally sufficient evidence. Because defense counsel made only a general motion to dismiss the indictment on the ground of legally insufficient evidence, his contentions are not preserved for our review (see, People v. Gray, 86 N.Y.2d 10, 19). The fact that defendant raised some of those contentions in his motion to set aside the verdict pursuant to CPL 330.30 (1) does not render them preserved for our review. Pursuant to that section, a court may set aside a verdict on grounds that, if raised on appeal, would require reversal as a matter of law, and defendant's present contentions do not require reversal as a matter of law because they are not preserved for our review (see, CPL 330.30; People v. Sheltray, 244 A.D.2d 854, 854-855, lv denied 91 N.Y.2d 897).
Likewise, defendant failed to preserve for our review his contentions that counts seven, 11, 13, 16 and 17 of the indictment are duplicitous (see, People v. Velasquez, 264 A.D.2d 450 [decided Aug. 16, 1999]; People v. Morey, 224 A.D.2d 730, 731, lv denied 87 N.Y.2d 1022; People v. Miller, 221 A.D.2d 1001). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).
The sentence is neither unduly harsh nor severe. We modify the judgment, however, by reducing the minimum term of incarceration under count 14 of the indictment from 12+ years to 8 years to comply with Penal Law § 70.02 (1) (a) as it provided in 1995 when the crime was committed (see, People v. Jones, 261 A.D.2d 920 [decided May 7, 1999], lv denied 93 N.Y.2d 972).