People v. Heer

Nov 19, 2004
Versions:12 A.D.3d 1154
784 N.Y.S.2d 412
2004 N.Y. App. Div. LEXIS 14018

Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered June 14, 2001. 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 *1155(§ 260.10). The testimony of the People’s expert did not constitute improper bolstering of the victim’s testimony. That testimony was admissible to establish that a lack of physical evidence does not preclude a finding that sexual abuse occurred (see People v Cook, 286 AD2d 917 [2001], lv denied 97 NY2d 680 [2001]). Contrary to defendant’s further contention, the evidence is legally sufficient to support the conviction. The victim and an eyewitness testified regarding the abuse. Defendant received effective assistance of counsel, and the sentence is not unduly harsh or severe. Defendant’s remaining contentions are not preserved for our review (see CPL 470.05 [2]), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Present—Green, J.P., Gorski, Martoche, Lawton and Hayes, JJ.