People v. Graves

Jun 14, 2004
Versions:8 A.D.3d 1045
778 N.Y.S.2d 364
2004 N.Y. App. Div. LEXIS 8251

Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered July 31, 2002. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree and endangering the welfare of a child.

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 following a jury trial of sexual abuse in the first degree (Penal Law § 130.65 [3]) and endangering the welfare of a child (§ 260.10 [1]). We reject the contention of defendant that the evidence is legally insufficient to support the conviction of sexual abuse in the first degree because the People failed to prove that he touched the victim’s penis for the purpose of gratifying sexual desire (§ 130.00 [3]). “The element of sexual gratification ‘may be inferred from [defendant’s] conduct itself ” (People v Schenk, 294 AD2d 914, 914 [2002], lv denied 98 NY2d 702 [2002], quoting People v Anthony D., 259 AD2d 1011, 1011 [1999], lv denied 93 NY2d 1001 [1999]). The verdict is not against the weight of the evidence (see People v Boyce, 2 AD3d 984, 985-986 [2003]). The fact that the sentence imposed exceeds the sentence offered as part of a plea bargain does not establish that defendant was penalized for asserting his right to a trial (see People v Lusby, 2 AD3d 1332, 1333 [2003]; People v Lewis, 292 AD2d 814, 815 [2002], lv denied 98 NY2d 677 [2002]). Finally, we reject the contention of defendant that County Court abused its discretion in adjudicating him a persistent felony offender (see CPL 400.20 [1] [b]) and sentencing him to the maximum term of 25 years to life (see People v Young, 255 AD2d 907, 908 [1998], affd 94 NY2d 171 [1999], rearg denied 94 NY2d 876 [2000]). “[T]he record reveals that the court was aware of the relevant factors and its *1046determination is amply supported by the evidence” (People v Jones, 134 AD2d 451, 451-452 [1987], lv denied 70 NY2d 1007 [1988]). Present—Green, J.P., Wisner, Scudder, Gorski and Lawton, JJ.