People v. Powell

Mar 21, 2003
Versions:303 A.D.2d 978
755 N.Y.S.2d 915
2003 N.Y. App. Div. LEXIS 3001

—Appeal from a judgment of Niagara County Court (Sperrazza, J.), entered May 15, 2001, convicting defendant after a jury trial of, inter alia, sexual abuse in the first degree (two counts).

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 after a jury trial of two counts of sexual abuse in the first degree (Penal Law former § 130.65 [3]) and three counts of *979endangering the welfare of a child (§ 260.10 [1]). Contrary to the contention of defendant, he was not deprived of a fair trial when County Court questioned two witnesses regarding their testimonial capacity in the presence of the jury (see People v Pochily, 255 AD2d 695, 696 [1998], lv denied 93 NY2d 856 [1999]; People v Gallow, 171 AD2d 1061, 1062 [1991], lv denied 77 NY2d 995 [1991]; see also People v Peters, 242 AD2d 930, 931 [1997], lv denied 91 NY2d 896 [1998]; see generally CPL 60.20 [2]). Defendant waived his challenge to the legal sufficiency of the evidence by failing to renew his motion to dismiss on that ground at the close of his case (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]; People v Hill, 300 AD2d 1125 [2002]; People v Kerner, 299 AD2d 913 [2002]). The verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant failed to preserve for our review his contention that the court erred in admitting the testimony of a witness concerning defendant’s prior bad acts and uncharged crimes without conducting a Ventimiglia hearing (see 470.05 [2]; People v Vaughn, 291 AD2d 915 [2002], lv denied 97 NY2d 762 [2002]; People v Carter, 263 AD2d 958 [1999], lv denied 94 NY2d 820 [1999]; People v Preston, 255 AD2d 530, 530-531 [1998], lv denied 93 NY2d 976 [1999]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Finally, the sentence is neither unduly harsh nor severe. Present — Pigott, Jr., P.J., Pine, Hurlbutt, Lawton and Hayes, JJ.