| People v Scott |
| 2009 NY Slip Op 03229 [61 AD3d 1348] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Henry Scott,Appellant. (Appeal No. 1.) |
—[*1] Henry Scott, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedApril 3, 2007. The judgment convicted defendant, upon a jury verdict, of predatory sexualassault against a child, rape in the first degree, sexual abuse in the second degree, sexual abuse inthe third degree, criminal sale of marihuana in the fifth degree, unlawfully dealing with a child inthe first degree (two counts), and endangering the welfare of a child (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of rape in the first degree and dismissing count twoof the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, predatory sexual assault against a child (Penal Law § 130.96) and rape in thefirst degree (§ 130.35 [4]). Defendant failed to preserve for our review his contention thatthe conviction of predatory sexual assault against a child and rape in the first degree is notsupported by legally sufficient evidence inasmuch as he moved for a trial order of dismissal on aground different from that raised on appeal (see People v Gray, 86 NY2d 10, 19 [1995]).In any event, defendant's present contention, that the evidence with respect to those crimes islegally insufficient because the age of the victim was established solely by her own testimony,lacks merit. The age of the victim was established by her unambiguous testimony, and it is wellsettled that "[a] person is competent to testify as to his [or her] own age" (People vBessette, 169 AD2d 876, 877 [1991], lv denied 77 NY2d 992 [1991]; see Peoplev Bolden, 194 AD2d 834, 835 [1993], lv denied 82 NY2d 714 [1993]). Defendantfurther contends in his main and pro se supplemental briefs that the verdict is against the weightof the evidence. We reject that contention. Viewing the evidence in light of the elements of thecrimes as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). The jury was entitled to credit the testimony of the victim with respect to her age(see generally id.).[*2]
We agree with defendant, however, that the part of thejudgment convicting him of rape in the first degree under Penal Law § 130.35 (4) must bereversed and count two of the indictment dismissed because it is an inclusory concurrent countof predatory sexual assault against a child. We therefore modify the judgment accordingly.
Pursuant to CPL 300.30 (4), concurrent counts are inclusory when the offense charged in oneis greater than that charged in the other and when the latter is a lesser offense included within thegreater (see People v Miller, 6NY3d 295, 300 [2006]). To establish that an offense is a lesser included offense, "it must beshown that . . . in all circumstances, not only in those presented in the particularcase, it is impossible to commit the greater crime without concomitantly, by the same conduct,committing the lesser offense. That established, the defendant must then show that there is areasonable view of the evidence in the particular case that would support a finding that hecommitted the lesser offense but not the greater" (People v Glover, 57 NY2d 61, 63[1982]). The first requirement concerns only "the subdivision which the particular act oromission referred to in the indictment brings into play" (People v Green, 56 NY2d 427,431 [1982], rearg denied 57 NY2d 775 [1982]). Here, the predatory sexual assault countcharged rape in the first degree as one of its elements and, as charged in the indictment, theelements of the predatory sexual assault with respect to rape in the first degree are preciselythose required for rape in the first degree under Penal Law § 130.35 (4). Thus, it wasimpossible for defendant to commit predatory sexual assault against a child without, by the sameconduct, committing rape in the first degree, thereby rendering rape in the first degree aninclusory concurrent count of predatory sexual assault against a child.
We have examined the remaining contentions of defendant in his pro se supplemental briefand conclude that none requires reversal. Present—Scudder, P.J., Smith, Peradotto, Carniand Green, JJ.