| People v Kalen |
| 2009 NY Slip Op 09754 [68 AD3d 1666] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChristopherM. Kalen, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedSeptember 27, 2006. The judgment convicted defendant, upon a jury verdict, of endangering thewelfare of a child (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial oftwo counts of endangering the welfare of a child (Penal Law § 260.10 [1]). Viewing theevidence in light of the elements of that crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although anacquittal with respect to those counts "would not have been unreasonable, upon weighing theprobative value and force of the conflicting testimony and the inferences to be drawn therefrom,"we cannot conclude that the jury failed to give the evidence the weight it should be accorded (People v Kuykendall, 43 AD3d493, 495 [2007], lv denied 9 NY3d 1007 [2007]; see generally Bleakley, 69NY2d at 495). Indeed, defendant was acquitted of one count each of criminal sexual act in thethird degree (Penal Law § 130.40 [2]) and endangering the welfare of a child, and twocounts of sexual abuse in the third degree (§ 130.55). We accord great deference to thejury's credibility determinations, "which obviously reflect[ ] at least [the jury's] uncertaintyconcerning much of the complainant[s'] testimony [with respect to] the . . . crimesof which defendant was acquitted. However, the jury was entitled to credit some of [their]testimony while discounting other aspects" (Kuykendall, 43 AD3d at 495; see Peoplev Reed, 40 NY2d 204, 208 [1976]). We see no basis to disturb the jury's determination thatdefendant knowingly engaged in conduct that was likely to be harmful to the physical, mental ormoral welfare of the 15- and 16-year-old complainants, including his discussion of both thepornography industry and his genitals with the complainants (see Penal Law §260.10 [1]). Finally, we conclude that the issue whether the complainants were actually harmedby defendant's conduct is irrelevant with respect to the counts of endangering the welfare of achild (see People v Simmons, 92 NY2d 829, 830 [1998]). Present—Hurlbutt, J.P.,Centra, Fahey, Carni and Pine, JJ.