| People v Alteri |
| 2008 NY Slip Op 01877 [49 AD3d 918] |
| March 6, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael E.Alteri, Appellant. |
—[*1] Julie A. Garcia, District Attorney, Elizabethtown, for respondent.
Lahtinen, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered March 6, 2007, upon a verdict convicting defendant of the crimes of endangering thewelfare of a child and sexual abuse in the third degree.
Defendant and his girlfriend attended a party during the first weekend of December 2005 at aresidence in the Village of Ticonderoga, Essex County. Among those present was the 16-year-oldvictim, who became intoxicated as the party progressed and eventually went to a bedroom whereshe and defendant's girlfriend began kissing. Shortly thereafter, defendant entered the bedroomand, while his girlfriend performed oral sex upon him, he allegedly fondled the victim. Basedupon such conduct, defendant was indicted for, among other things, endangering the welfare of achild and sexual abuse in the third degree. He was convicted by a jury of these two crimes andnow appeals.
Defendant asserts that there was inadequate evidence both of the alleged touching and alsothe date when the incident occurred and, thus, the verdict was not supported by legally sufficientevidence. The standard of review on a challenge for legal sufficiency is whether "viewed in thelight most favorable to the People, there exists a valid line of reasoning and permissibleinferences from which a rational juror could conclude that each of the elements of the subjectcharges upon which defendant was convicted were established beyond a reasonable doubt" (People v Richardson, 28 AD3d1002, 1004 [2006], lv denied 7 NY3d 817 [2006]; see [*2]People v Bleakley, 69 NY2d 490, 495 [1987]). With regard tothe touching of the victim, defendant's girlfriend acknowledged that she saw defendant touchingthe victim's breast. Although the victim's recall was not clear because of her level of intoxication,she testified that after the subject evening defendant stated to her that he had placed his hand onher vagina. We find this proof sufficient regarding touching. Similarly, the evidence wassufficient to establish that the conduct occurred on the first weekend of December 2005 asalleged in the indictment. Defendant presented proof that placed him at a fire departmentChristmas party during part of the evening of Saturday, December 3, 2005. Nevertheless, boththe victim and defendant's girlfriend recalled that the incident occurred during the first weekendof December 2005.
Since an acquittal would not have been unreasonable, we have weighed the conflictingtestimony and rational inferences that may be drawn therefrom (see People v Danielson, 9 NY3d342, 349 [2007]; People vChaffee, 30 AD3d 763, 764 [2006], lv denied 7 NY3d 846 [2006]). Accordingdeference to the jury's opportunity to view the witnesses and assess credibility (see People vBleakley, 69 NY2d at 495; People vStasiak, 25 AD3d 1025, 1026 [2006]) and noting that a jury's verdict is not necessarilyagainst the weight of the evidence merely because it accepts part of a witness's testimony andrejects other parts (see People vKuykendall, 43 AD3d 493, 495-496 [2007], lv denied 9 NY3d 1007 [2007]; People v Bush, 14 AD3d 804,804-805 [2005], lv denied 4 NY3d 852 [2005]), we are not persuaded that the jury'sverdict was against the weight of the evidence.
Finally, we find no merit in defendant's argument that County Court committed prejudicialerror in precluding him from presenting proof regarding the victim's prior sexual activity. "[S]uchevidence is inadmissible unless it falls within one of the statutory exceptions" (People v Thompson, 27 AD3d888, 890 [2006], lv denied 6 NY3d 853 [2006]; see CPL 60.42). No statutoryexception was shown and the fact that the victim may have been sexually active does not, asurged by defendant, tend to show that his conduct on the night in question was not likely to beharmful to her physical, mental or moral welfare (see generally People v Kuykendall, 43AD3d at 496).
Cardona, P.J., Peters, Spain and Kane, JJ., concur. Ordered that the judgment is affirmed.