| People v Warner |
| 2010 NY Slip Op 00310 [69 AD3d 1052] |
| January 14, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Carl L.Warner, Appellant. |
—[*1] William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), forrespondent.
Mercure, J. Appeal from a judgment of the County Court of Madison County (DiStefano, J.),rendered January 18, 2007, upon a verdict convicting defendant of the crimes of rape in the firstdegree (two counts), sexual abuse in the first degree and endangering the welfare of a child (twocounts).
Defendant was charged in a seven-count indictment with various crimes related to his sexualabuse of two girls, aged eight (hereinafter victim A) and four (hereinafter victim B). Following ajury trial, at which victim A testified, defendant was found guilty of two counts of rape in thefirst degree, one count of sexual abuse in the first degree and one count of endangering thewelfare of a child, all related to victim A, as well as one count of endangering the welfare of achild with regard to victim B. County Court sentenced defendant to an aggregate prison term of47 years, and defendant now appeals.
Initially, we reject defendant's claim that the convictions were against the weight of theevidence. Inasmuch as a different verdict would not have been unreasonable, we "must, like thetrier of fact below, 'weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony' " (People vBleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Danielson, 9 NY3d 342, 348 [2007]). [*2]Our weight of the evidence review is not limited to credibilityquestions; "a court must consider the elements of the crime, for even if the prosecution'switnesses were credible their testimony must prove the elements of the crime beyond areasonable doubt" (People v Danielson, 9 NY3d at 349).[FN1]
In this case, victim A testified to several incidents of abuse at the hands of defendant, andthat testimony, if credited, amply supported the present convictions.[FN2]The first occurred in July 2002, when defendant unzipped her skirt and touched her vagina. On asecond occasion when both victims were present, victim A stated that defendant instructed her toundress and touched her vagina with his penis. She then watched as defendant placed his fingersinside victim B's vagina. Victim A further testified that, later that day, defendant inserted hispenis into her vagina while victim B was present, and that defendant again fondled victim B.While there were some inconsistencies between victim A's testimony and her prior statements,defendant fully developed the argument before the jury that these inconsistencies renderedvictim A unworthy of belief. The jury rejected that argument and credited victim A's testimonyand, as nothing in the record suggests that her testimony was inherently incredible or otherwisedeficient, we perceive no reason to disturb the jury's credibility determination (see People v Beauharnois, 64 AD3d996, 998-999 [2009], lv denied 13 NY3d 834 [2009]; People v Borthwick, 51 AD3d1211, 1214-1215 [2008], lv denied 11 NY3d 734 [2008]).
While defendant's other claims that are unrelated to his sentence have been reviewed and, tothe extent that they are preserved, found to be meritless, we must remit this matter to CountyCourt for resentencing. County Court failed to sentence defendant to a period of postreleasesupervision, as required, for his convictions upon the rape and sexual abuse counts (seePenal Law § 70.45 [1], [2-a]; § 70.80 [3]). Although not raised by either party, wecannot permit an illegal sentence to stand (see People v Gibson, 52 AD3d 1227, 1227-1228 [2008]). Theremedy for this failure "is to vacate the sentence and remit for a resentencing hearing so that thetrial judge can make the required pronouncement" (People v Sparber, 10 NY3d 457, 471 [2008]; see CPL380.20; People v Collado, 11 NY3d888, 889 [2008]). While we may impose a legal sentence rather than remit for resentencing(see People v LaSalle, 95 NY2d 827, 829 [2000]), this remedy is generally reserved forthose cases where the intent of the sentencing court may be discerned from the record (see People v Assadourian, 19 AD3d207, 208 [2005], lv denied 5 NY3d 785 [2005]; People v Lawrence, 130AD2d 383 [1987]). That is not the situation presented here, where County Court failed to imposeany term of postrelease [*3]supervision (cf. People vSerrano, 309 AD2d 822, 823 [2003], lv denied 1 NY3d 580 [2003]).[FN3]As remittal for resentencing is necessary, defendant's argument that his present sentence is harshand excessive is academic (see People vMosley, 54 AD3d 1098, 1099 [2008]).
Cardona, P.J., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofMadison County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.
Footnote 1: Defendant also argues that theverdict was based upon legally insufficient evidence. While that argument is not preserved forour review, we necessarily consider the legal sufficiency of the evidence in the context of ourweight of the evidence review (seePeople v Scott, 67 AD3d 1052, 1054 [2009]; People v Mann, 63 AD3d 1372, 1373 [2009]).
Footnote 2: Contrary to defendant'sargument, no corroboration of victim A's testimony was required, as the charged crimes werepredicated upon her age (see People vDavis, 45 AD3d 1351, 1352 [2007]; People v Diotte, 305 AD2d 721, 722[2003], lv denied 100 NY2d 580 [2003]).
Footnote 3: A range of postreleasesupervision terms are permissible: 2½ to 5 years for the rape counts (see Penal Law§ 70.45 [former (2) (f)]), and 1½ to 3 years for the sexual abuse count (seePenal Law § 70.45 [former (2) (e)]).