People v Y
This is an appeal by the defendant from a Supreme Court judgment, which was decided on February 7, 2013. The defendant was convicted of first degree sexual conduct against a child (3 counts), second degree sexual conduct against a child (two counts), second degree criminal sexual acts (16 counts), second degree sexual abuse (27 counts), third-degree sexual abuse (24 counts), and endangering the welfare of a child (3 counts).
The court ordered that as a matter of discretion and in interests of justice, the judgment is modified. The charges of sexual abuse in the third degree, counts 80, 87, 98, 107 and 108 are vacated. The court vacated the sentences for these charges as well. The modified judgment is affirmed.
The defendant was initially accused of repeated sexual abuse of 2 male victims, and showing a 3d male pornographic materials. After a jury trial, the defendant was convicted of 75 counts of the indictment.
The defendant challenged the sufficiency of evidence for the charge of a criminal sexual act in the 2nd degree under count 9, and sexual abuse in the 3d counts 80, 87, 98, 107 and 108. These charges are considered unpreserved under CPL 470.05  and People v Hawkins 11 NY3d 484, 492.
The court, nevertheless, exercises their interest of justice jurisdiction (CPL 470.15[c], People v Vasquez 153 AD 643, 644). The court finds that the People didn’t present legally sufficient evidence to establish guilt as to count 80 of the sexual abuse in the 3d degree because it was not proven that victim’s hand made contact with the defendant, or that the defendant’s penis made contact with the victim’s buttocks.
There was also legally insufficient evidence to establish counts 98 and 108 of 3d degree sexual abuse because the victim, in essence, admitted that he was not subject to sexual contact during the time period alleged in the indictment.
The court looks at the evidence in light of what is most favorable to the prosecution (Peo. v Contes 60 NY2d 620, 621). The evidence at trial was legally adequate to establish that the defendant’s guilt of a criminal sexual act under count 9 beyond a reasonable doubt.
In reviewing the weight of the evidence (CPL 470.15(5), the court gives great deference to the jury and their opportunity to observe and hear witnesses (People v Mateo 2 NY 383). In our review of the record, the court is satisfied with the guilty verdict of criminal sexual conduct against a child in the first degree, sexual conduct against a child in the second degree, third-degree sexual abuse, and 70 counts of endangering the welfare of a child which were not against the weight of the evidence (People v Romero 7 NY3d 633).
The defendant argues that the court erred in allowing the prosecution to submit rebuttal evidence from a male witness. The defendant has previously made sexual advances to this person. However, despite the defendant’s allegations, the court appropriately exercised its discretion permitting the prosecution to submit evidence elicited by the defendant because of his religious beliefs would not engage in certain behavior.
The defendant claimed to be an orthodox Jew, and the activity in question (masturbation), was against his religious beliefs. The defendant also believed that homosexual conduct was a sin. He said that mutual masturbation and “wasting his seed” was the very worst sin of all.
The defendant called two rabbis as witnesses to attest that the defendant was very committed to his religion.
The rebuttal witness’s testimony that the defendant tried to persuade the victim to perform mutual masturbation effectively rebuts the defendant’s defense (People v Harris 57 NY2d 335, People v Castenada 173 AD2d 349). The court felt that the probative value of this evidence outweighed the risk of prejudice.
The defendant argues he was denied a fair trial due to comments made during summation. However the remarks in question were fair (People v Ashwal 39 NY2d 105) to the extent that some of these remarks were improper, the cumulative result didn’t deprive the defendant of a fair trial (People v Johnson 159 AD3d 833, People v Wilson 163 AD3d 881.
The remaining contentions weren’t preserved from appellate review.