| People v Cook |
| 2013 NY Slip Op 08296 [112 AD3d 1065] |
| December 12, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vLawrence E. Cook, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Chemung County(Buckley, J.), rendered July 1, 2011, upon a verdict convicting defendant of the crimes ofsexual abuse in the first degree (three counts) and endangering the welfare of a child.
Defendant, who resided in Chemung County with his paramour and her two children,was arrested in November 2010 after one of the children (hereinafter the victim) madedisclosures to a child protective caseworker. Defendant was charged by indictment withthree counts of sexual abuse in the first degree and one count of endangering the welfareof a child. Following a jury trial, he was convicted as charged. County Court sentencedhim to concurrent terms of five years in prison followed by 10 years of postreleasesupervision on the sexual abuse convictions and a concurrent term of one year forendangering the welfare of a child. Defendant appeals.
Defendant contends that the evidence supporting his sexual abuse convictions waslegally insufficient in that the People did not establish that he touched the victim "for thepurpose of gratifying sexual desire" and thus did not prove that he subjected her to sexualcontact (Penal Law § 130.00 [3]; see Penal Law § 130.65 [3]). Wedisagree. An inference of sexual gratification may be drawn from the conduct of adefendant who has intimate contact with a child to whom he or she is not related (see People v Fuller, 50 AD3d1171, 1174-1175 [2008], lv [*2]denied 11NY3d 788 [2008]; People v Watson, 281 AD2d 691, 697-698 [2001], lvdenied 96 NY2d 925 [2001]). The victim testified that while she was alone withdefendant, he touched the bare skin of her breasts and vaginal area with the suction endof a vacuum cleaner and a plastic pipe and touched her vaginal area through her clothingwith his hand. She further testified that defendant offered her candy in exchange for herpromise not to tell other people about these incidents and warned her that he would go tojail if she told anyone. This evidence, viewed in the light most favorable to the People,was sufficient to permit a rational jury to determine that the element of sexualgratification was proved beyond a reasonable doubt (see People v Hayes, 104 AD3d 1050, 1053-1054 [2013];People v Byron, 85 AD3d1323, 1325 [2011], lv denied 17 NY3d 857 [2011]; People v King, 79 AD3d1277, 1279 [2010], lv denied 16 NY3d 860 [2011]).
We are unpersuaded by defendant's claim that his sentence is harsh and excessive.Notably, he received less than the maximum permissible term (see Penal Law§ 70.80 [4] [a] [iii]). Given his conduct toward his seven-year-old victim and hisfailure to take responsibility for his actions, we find no abuse of discretion orextraordinary circumstances warranting a reduction in the interest of justice (see People v Simmons, 103AD3d 1027, 1031 [2013], lv denied 21 NY3d 1009 [2013]; People v Patnode, 60 AD3d1109, 1111 [2009]; People v Lemke, 58 AD3d 1078, 1080 [2009]; People v Ogburn, 46 AD3d1018, 1019 [2007], lv denied 10 NY3d 769 [2008]).
Rose, J.P., Stein and Spain, JJ., concur. Ordered that the judgment is affirmed.