| People v Willis |
| 2010 NY Slip Op 09721 [79 AD3d 1739] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Randy Willis, Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), renderedOctober 24, 2008. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree, failure to register and/or to verify his status as a sex offender and forcibletouching.
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 ofburglary in the second degree (Penal Law § 140.25 [2]), failure to register as a sex offenderand/or to verify his status as such (Correction Law § 168-f [4]), and forcible touching(Penal Law § 130.52). Defendant contends that the evidence is legally insufficient tosupport the forcible touching conviction inasmuch as the People failed to establish the victim'slack of consent. That contention is not preserved for our review inasmuch as defendant failed toraise that ground in his motion for a trial order of dismissal with respect to the forcible touchingconviction (see People v Gray, 86 NY2d 10, 19 [1995]; People v Jacobson, 60 AD3d1326, 1327-1328 [2009], lv denied 12 NY3d 916 [2009]) and, in any event, thatcontention lacks merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Defendant further contends that the evidence is legally insufficient to support the forcibletouching conviction because the People failed to establish that he acted "for the purpose ofdegrading or abusing" the victim "or for the purpose of gratifying [his] sexual desire" (§130.52). We reject that contention. "Because the question of whether a person was seekingsexual gratification is generally a subjective inquiry, it can be inferred from the conduct of theperpetrator" (People v Beecher, 225 AD2d 943, 944 [1996]). Here, it can be inferred thatdefendant grabbed the victim's breast for the purpose of sexual gratification from, inter alia, thefact that he placed his hands on his crotch prior to touching the victim and the fact that hetouched the victim's buttocks on a prior occasion (see generally People v Fuller, 50 AD3d 1171, 1174-1175 [2008],lv denied 11 NY3d 788 [2008]; People v Watson, 281 AD2d 691, 697 [2001],lv denied 96 NY2d 925 [2001]).
We conclude that the evidence, viewed in the light most favorable to the People (seePeople v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to support the conviction ofburglary and failure to [*2]register as a sex offender and/or toverify defendant's status as such (see generally Bleakley, 69 NY2d at 495). Evenassuming, arguendo, that the People were required to establish that defendant knowingly orintentionally failed to comply with the requirements of the Sex Offender Registration Act(SORA) (Correction Law § 168 et seq.; People v Haddock, 48 AD3d 969, 970-971 [2008], lvdismissed 12 NY3d 854 [2009]), we conclude that there is sufficient evidence in the recordfrom which a rational jury could reasonably conclude that defendant knowingly failed to registerand/or verify pursuant to SORA. Viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495).
Contrary to the contention of defendant, we conclude that County Court properly denied hisrequest for an expanded identification charge inasmuch as this case did not involve a " 'closequestion of identity' " (People v Perez, 77 NY2d 928, 929 [1991]; see People vSingleton, 286 AD2d 877 [2001], lv denied 97 NY2d 658 [2001]; People vRogers, 245 AD2d 1041 [1997]). Defendant admitted in a statement to the police that he wasinside the victim's home on the date in question and that he returned to the victim's home thefollowing day, shortly after which he was apprehended by the police. In any event, the court"properly charged the jury that the People were required to prove every element of the crimebeyond a reasonable doubt, 'including that the defendant is the person who committed the crime'" (People v Gerena, 49 AD3d1204, 1205 [2008], lv denied 10 NY3d 958 [2008]; see People v Whalen, 59NY2d 273, 279 [1983]; People v Barton, 301 AD2d 747 [2003], lv denied 99NY2d 625 [2003], reconsideration denied 1 NY3d 539 [2003]).
Viewing the evidence, the law and the circumstances of this case, in totality and as of thetime of the representation, we conclude that defendant received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]; People v Williams, 300AD2d 1059 [2002], lv denied 99 NY2d 634 [2003]). To the extent that defendantcontends that he was deprived of a fair trial by prosecutorial misconduct during summation, wenote that defense counsel objected to the allegedly improper comments and that those objectionswere sustained. In any event, we conclude that "[a]ny 'improprieties were not so pervasive oregregious as to deprive defendant of a fair trial' " (People v Johnson, 303 AD2d 967, 968[2003], lv denied 100 NY2d 583 [2003]).
Finally, the sentence is not unduly harsh or severe. Present—Martoche, J.P., Smith,Fahey, Peradotto and Green, JJ.