| People v Mills |
| 2009 NY Slip Op 04834 [63 AD3d 1717] |
| June 12, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Micky T.Mills, Appellant. |
—[*1] John H. Crandall, District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel), forrespondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), renderedAugust 5, 2004. The judgment convicted defendant, upon a jury verdict, of course of sexualconduct against a child in the first degree, sodomy in the second degree, and endangering thewelfare of a child (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofone count each of course of sexual conduct against a child in the first degree (Penal Law §130.75 [1] [b]) and sodomy in the second degree (former § 130.45 [1]), and three counts ofendangering the welfare of a child (§ 260.10 [1]). Defendant failed to preserve for ourreview his contention that the evidence is legally insufficient to support the convictions (seePeople v Gray, 86 NY2d 10, 19 [1995]). The verdict is not against the weight of theevidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant failed to moveto set aside the verdict on the ground of repugnancy before the jury was discharged and thusfailed to preserve for our review his contention that the verdict is repugnant insofar as he wasacquitted of sodomy in the first degree, sexual abuse in the first degree, rape in the first degreeand course of sexual conduct against a child in the first degree with respect to the youngest child,but was found guilty of sodomy in the second degree, course of sexual conduct against a child inthe first degree with respect to the middle child and endangering the welfare of a child withrespect to all three children (see People v Alfaro, 66 NY2d 985, 987 [1985]). We rejectthe contention of defendant that he was denied effective assistance of counsel (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]). The sentence is not unduly harsh or severe.
Finally, we note that the certificate of conviction incorrectly reflects that defendant wasconvicted upon a plea of guilty, and it must therefore be amended to reflect that he wasconvicted upon a jury verdict (seePeople v Martinez, 37 AD3d 1099, 1100 [2007], lv denied 8 NY3d 947 [2007]).Present—Martoche, J.P., Smith, Fahey, Carni and Green, JJ.