| People v King |
| 2010 NY Slip Op 09027 [79 AD3d 1277] |
| December 9, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Richard P. King,Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Delaware County (Becker, J.),rendered July 27, 2009, upon a verdict convicting defendant of the crimes of sexual abuse in the firstdegree (two counts), sexual abuse in the second degree (two counts), forcible touching (two counts)and endangering the welfare of a child (two counts).
In July 2008, defendant and his roommate—a risk level three sexoffender—accompanied the victim, who was 11 years old at the time, to a nearby park to goswimming. According to the victim, while they were at the park, defendant consumed some beer andgave him some cigars, and then forcibly touched him on his genitals. The victim ran home, told hismother, and defendant was subsequently arrested. An indictment was later filed charging defendant withsexual abuse in the first degree (two counts), sexual abuse in the second degree (two counts), forcibletouching (two counts) and endangering the welfare of a child (two counts). After a jury trial, defendantwas convicted as charged and sentenced to consecutive 6½-year prison terms on his convictionsfor sexual abuse in the first degree and six concurrent one-year terms on the remaining six crimes, plusfive years of postrelease supervision.
Defendant maintains that not all of the crimes for which he stands convicted are based [*2]on legally sufficient evidence[FN1]because he did not forcibly compel the victim to submit to any sexual contact and the evidenceintroduced at trial only confirmed that what contact he did have with the victim was incidental to aplayful and consensual encounter not prompted by any desire for sexual gratification. Initially, we notethat defendant failed to make a motion challenging the legal sufficiency of the evidence introduced attrial and, therefore, has not preserved this issue for appellate review (see People v Malcolm, 74 AD3d 1483,1484 n [2010]; People v Vargas, 72AD3d 1114, 1116 [2010], lv denied 15 NY3d 758 [2010]; People v Arce, 70 AD3d 1196, 1198[2010]). Moreover, our review of the record leads us to conclude that the verdict convicting defendantof the crimes of sexual abuse in the first degree and second degree and forcible touching is not againstthe weight of the credible evidence introduced at trial (see People v Romero, 7 NY3d 633, 643 [2006]; People vBleakley, 69 NY2d 490, 495 [1987]).
Defendant, as noted, claims that he did not use force in any contact he had with the victim whilethey were at the park. Sexual abuse in the first degree requires that it be proven that defendantsubjected the victim to sexual contact by forcible compulsion (see Penal Law § 130.65[1]).[FN2]Forcible compulsion, as it pertains to this prosecution, is defined as the "use of physical force" for thepurpose of having sexual contact with the victim (Penal Law § 130.00 [8]). In determiningwhether forcible compulsion was employed by defendant during his encounter with the victim, all of thesurrounding circumstances regarding what transpired may be considered, including "the state of mindproduced in the victim by the defendant's conduct, considering . . . the age of the victim,the relative size and strength of the defendant and victim, and the nature" of their relationship (People v Maggio, 70 AD3d 1258,1258-1259 [2010], lv denied 14 NY3d 889 [2010] [internal quotation marks and citationsomitted]; see People v Scanlon, 52AD3d 1035, 1038 [2008], lv denied 11 NY3d 741 [2008]). Here, the victim testified thatdefendant had been wrestling with him when defendant "tapped" the victim in his genitals and made himfeel "weird." The victim stated that he responded to this contact by punching defendant in the leg andtelling him not to touch him in that way. A short time later, according to the victim, they once againbegan to wrestle and defendant, at that time, pushed him to the ground and once again touched hisgenitals. According to the victim, both incidents occurred after defendant had made repeated efforts toforcibly remove the victim's shorts while they were swimming in a nearby pond. This contact, whenviewed in the context of the entire encounter, establishes that defendant used physical force on thevictim so that defendant could have sexual contact with him.[FN3]
Defendant also denies that his contact with the victim was motivated by a desire for sexualgratification. Sexual gratification can be inferred from the nature of the contact, as well as [*3]other evidence which, upon admission, provides a fuller explanation as towhy the questionable contact, in fact, occurred (see People v Elwood, 62 AD3d 1046, 1047 [2009]; People v Stewart, 57 AD3d 1312,1315 [2008], lv denied 12 NY3d 788 [2009], cert denied 558 US —, 130 SCt 1047 [2010]; see also Matter of LaurynH. [William A.], 73 AD3d 1175, 1177 [2010]; Matter of Jonathan F., 72 AD3d 963, 964 [2010]). Here, defendant'sroommate testified that, prior to the incident, defendant had told him that he was sexually attracted tothe victim, who lived next door. Also, the victim recalled that, while at the park, defendant stated thathe wanted to use a "penis pump" on him. These statements, along with the victim's account of whattranspired at the park, establish that defendant's contact with the victim was prompted by a desire forsexual gratification (see People v Fuller,50 AD3d 1171, 1174-1175 [2008], lv denied 11 NY3d 788 [2008]; People vBeecher, 225 AD2d 943, 944-945 [1996]).
Defendant also argues that the victim's trial testimony was so inconsistent with other statements hemade regarding this incident as to render it incredible as a matter of law. While inconsistencies in thechild's testimony undoubtedly exist, he steadfastly maintained throughout this investigation andsubsequent prosecution that defendant forcibly subjected him to sexual contact while they were at thepark. Moreover, none of the inconsistencies—all of which were fully developed attrial—was so significant as to warrant a wholesale rejection of the victim's testimony or justify afinding that it was incredible as a matter of law (see People v Lopez-Aguilar, 64 AD3d 1037, 1038 [2009], lvdismissed 13 NY3d 940 [2010]; Peoplev Borthwick, 51 AD3d 1211, 1214 [2008], lv denied 11 NY3d 734 [2008]).
Nor do we agree that defendant was denied the effective assistance of counsel (see People vBaldi, 54 NY2d 137, 146 [1981]). Throughout these proceedings, counsel made appropriatemotions on defendant's behalf, effectively limited the prosecution's cross-examination of defendantregarding his prior criminal record and competently raised questions regarding the victim's credibilitybecause of inconsistencies that existed in the statements he gave regarding what had transpired at thepark. In addition, we are not unmindful that defending a person charged with molesting a child is adifficult and delicate undertaking, and counsel's efforts on defendant's behalf, given the nature of thecharges pending against him, satisfy us that defendant receive meaningful representation (see Peoplev Fuller, 50 AD3d at 1176; People v DeMarco, 33 AD3d 1045, 1046 [2006]; People v Johnson, 24 AD3d 967, 970 [2005], lv denied 6NY3d 814 [2006]).
Finally, defendant's sentence was not harsh and excessive. He stands convicted of enticing an11-year-old child to accompany him and a known sex offender to a secluded area in a nearby park andthen forcing himself upon the child for his own sexual gratification. Given defendant's criminal record, aswell as his status as a risk level two sex offender, we see no reason to conclude that County Courtabused its discretion in imposing this sentence and find that extraordinary circumstances do not existthat would warrant its modification (seePeople v Hicks, 55 AD3d 1138, 1142 [2008], lv denied 12 NY3d 758 [2009]).
Cardona, P.J., Peters, Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Defendant does not claim that hisconviction for two counts of endangering the welfare of a child is not supported by legally sufficientevidence.
Footnote 2: Sexual contact is defined as "anytouching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire ofeither party" (Penal Law § 130.00 [3]).
Footnote 3: According to defendant's ownstatement, he was showing the victim defensive moves when he placed the victim in a headlock andsqueezed the victim's thigh.