| People v Baker |
| 2009 NY Slip Op 08410 [67 AD3d 1446] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EmmettBaker, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered July17, 2008. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the firstdegree (six counts) and course of sexual conduct against a child in the first degree.
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 of sixcounts of sexual abuse in the first degree (Penal Law § 130.65 [3]) and one count ofcourse of sexual conduct against a child in the first degree (§ 130.75 [1] [a]). Defendantfailed to preserve for our review his challenge to the legal sufficiency of the evidence by failingto renew his motion for a trial order of dismissal after presenting evidence (see People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event,defendant's challenge lacks merit (see generally People v Bleakley, 69 NY2d 490, 495[1987]). In addition, viewing the evidence in light of the elements of the crimes as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495). Defendant further contends thatCounty Court committed reversible error in refusing to charge the jury on the issue of joinder ofoffenses (see 1 CJI [NY] 5.39, at 239). Although we agree with defendant that the courterred in denying his request for that charge, we conclude that the error is harmless. The evidenceof defendant's guilt is overwhelming, and there is no significant probability that defendant wouldhave been acquitted had that charge been given (see generally People v Brian, 84 NY2d887, 889 [1994]; People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Defendant failed to preserve for our review his contention that counts four and six, chargingdefendant with sexual abuse in the first degree with respect to the same victim, weremultiplicitous (see People v Dann,17 AD3d 1152, 1153 [2005], lv denied 5 NY3d 761 [2005]). In any event, weconclude that defendant's contention lacks merit (see id.). Defendant also failed topreserve for our review his challenge to the court's Sandoval ruling (see People v Miller, 59 AD3d1124, 1125 [2009], lv denied 12 NY3d 819 [2009]), and we decline to exercise ourpower to review that challenge as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Defendant's contention that the evidence before the [*2]grand jury was legally insufficient with respect to counts two andthree of the indictment "is not reviewable upon an appeal from an ensuing judgment ofconviction based upon legally sufficient trial evidence" (CPL 210.30 [6]; see People v Lee, 56 AD3d 1250,1251 [2008], lv denied 12 NY3d 818 [2009]). The sentence is not unduly harsh orsevere. We have considered defendant's remaining contentions and conclude that they arewithout merit. Present—Hurlbutt, J.P., Martoche, Smith, Carni and Pine, JJ.