People v. Foss

Feb 8, 2008
Versions:48 A.D.3d 1219
852 N.Y.S.2d 534
2008 NY Slip Op 01190

Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered June 29, 2006. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree (two counts).

It is hereby ordered that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with respect to each other and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]). We reject defendant‘s contention that the evidence is legally insufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although the victims testified that they were not certain when the incidents underlying the charges occurred, a police investigator testified that she spoke with the victims and their mother in December 2001 after receiving a telephone call from a probation officer who expressed “concerns” about defendant. We thus conclude that there is a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury,” i.e., that the crimes were committed in 2001, at which time the victims were less than 11 years old (id.; see People v Adams, 43 AD3d 1423, 1424 [2007], lv denied 9 NY3d 1004 [2007]).

We agree with defendant, however, that the imposition of consecutive sentences with respect to each count renders the sentence unduly harsh and severe, and we therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with respect to each other (see CPL 470.15 [6] [b]; see generally People v Bailey, 17 AD3d 1022, 1023 [2005], lv denied 5 NY3d 803 [2005]). Present—Scudder, P.J., Centra, Fahey, Green and Pine, JJ.