| People v Schnoor |
| 2012 NY Slip Op 03862 [95 AD3d 1144] |
| May 15, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Edwin Schnoor, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (J. Doyle, J.),rendered October 13, 2009, convicting him of attempted aggravated sexual abuse in the thirddegree and endangering the welfare of a child, after a nonjury trial, and sentencing him to sixmonths in jail and 10 years of probation on the conviction of attempted aggravated sexual abusein the third degree, and to 90 days in jail and six years of probation on the conviction ofendangering the welfare of a child, to be served concurrently.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed on theconviction for endangering the welfare of a child; as so modified, the judgment is affirmed, andthe matter is remitted to the County Court, Suffolk County, for resentencing on the conviction forendangering the welfare of a child.
The defendant failed to preserve for appellate review his contention that the County Courtimprovidently exercised its discretion in allowing a six-year-old boy to give unsworn testimonyregarding sexual abuse by the defendant (see People v James, 233 AD2d 903 [1996]). Inany event, the court providently exercised its discretion in accepting the six-year-old's unsworntestimony, since the child stated that he understood what it meant to tell the truth, and hepossessed "sufficient intelligence and capacity to justify the reception" of the unsworn testimony(CPL 60.20 [2]; see People vMendoza, 49 AD3d 559, 560 [2008]). Moreover, the defendant was not convicted solelyupon the boy's unsworn testimony (see CPL 60.20 [3]). Three witnesses testified that theboy told them the same story that the boy told the County Court, and the defendant signed awritten confession.
The defendant's contention that the evidence was legally insufficient to support the verdict isunpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the factfinder's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383,410 [2004], cert denied 542 US 946 [2004]; [*2]People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewingthe record here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
The People correctly concede that the defendant's sentence of 90 days in jail and six years ofprobation on his conviction of the crime of endangering the welfare of a child is illegal(see Penal Law § 60.01 [2] [d]; § 65.00 [3]). We, therefore, must vacate thatsentence, and remit the matter to the County Court, Suffolk County, for resentencing on thatconviction.
We note that since this appeal was taken only from the judgment of conviction, and not fromthe determination pursuant to the Sex Offender Registration Act (Correction Law art 6-C), we arewithout authority to review the defendant's final contention that he should have been adjudicateda level one sex offender instead of a level two sex offender. Balkin, J.P., Leventhal, Hall andCohen, JJ., concur.