| People v Foss |
| 2008 NY Slip Op 01190 [48 AD3d 1219] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Colby H. Foss,III, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
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 abusein the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by directing that the sentences shall run concurrently withrespect to each other and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts of sexual abuse in the first degree (Penal Law § 130.65 [3]). We reject defendant'scontention that the evidence is legally insufficient to support the conviction (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Although the victims testified that they werenot certain when the incidents underlying the charges occurred, a police investigator testified thatshe spoke with the victims and their mother in December 2001 after receiving a telephone callfrom a probation officer who expressed "concerns" about defendant. We thus conclude that thereis a "valid line of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury," i.e., that the crimes were committed in 2001, at which time thevictims were less than 11 years old (id.; see People v Adams, 43 AD3d 1423, 1424 [2007], lv denied9 NY3d 1004 [2007]).
We agree with defendant, however, that the imposition of consecutive sentences with respectto each count renders the sentence unduly harsh and severe, and we therefore modify thejudgment as a matter of discretion in the interest of justice by directing that the sentences shallrun concurrently with respect to each other (see CPL 470.15 [6] [b]; see generally People v Bailey, 17AD3d 1022, 1023 [2005], lv denied 5 NY3d 803 [2005]). Present—Scudder,P.J., Centra, Fahey, Green and Pine, JJ.