| People v Kelly |
| 2017 NY Slip Op 02160 [148 AD3d 585] |
| March 23, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Devonte Kelly, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ellen N. Biben, J.), rendered September 21,2015, as amended September 22, 2015, convicting defendant, after a jury trial, of sexual abuse inthe first degree and three counts of forcible touching, and sentencing him to an aggregate term offour years, unanimously affirmed.
We reject defendant's challenges to the sufficiency and weight of the evidence supporting thesexual gratification element of sexual abuse (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Defendant'sactions and words support the inference that he acted for the purpose of gratifying a sexualdesire. The record fails to support defendant's claim that he had such difficulty expressinghimself that his sexual remark to the victim should not be taken literally.
Defendant was appropriately charged with a single count of first-degree sexual abuse, andthat count was not duplicitous, because all of the sexual abuse occurred during a single"uninterrupted course of conduct" (People v Alonzo, 16 NY3d 267, 270 [2011]). The fact that thevictim briefly fought defendant off before he resumed his attack did not create two separateincidents that should have been charged to the jury separately.
Contrary to defendant's argument, the People did not actually introduce evidence of anuncharged crime or bad act, and even if the evidence challenged by defendant is deemed to fallwithin the category of bad acts, it was still providently admitted. The court received limitedtestimony that shortly before the charged incident occurred, a teacher had seen one of hisstudents crying in the playground, that when he asked what was wrong, the student pointed todefendant, and that after directing defendant to leave and calling the police, the teacher drovearound with the police and pointed out defendant, who then had his arms around the victim of thecharged crime as he hugged and kissed her. The jury was never informed that defendant didanything to the crying girl, and "mere speculation that a jury might discern something sinisterabout a defendant's behavior does not render that behavior an 'uncharged crime' "(People v Flores, 210 AD2d 1, 2 [1st Dept 1994], lv denied 84 AD2d 1031[1995]). In any event, even if analyzed under the principles applicable to uncharged crimes andbad acts, this evidence completed the narrative, explaining why the police stopped defendanteven though all they saw was hugging and kissing. Furthermore, defendant's articulate remarkwhen the teacher told him to leave tended to refute his claim of difficulty in communicating, anddefendant's arguments regarding the scope of our review of the court's ruling are unavailing (see People v Nicholson, 26 NY3d813 [2016]; People v Garrett,23 NY3d 878, 885 n 2 [2014]). The probative value of this [*2]evidence outweighed any prejudicial effect, which was minimizedby the court's thorough limiting instructions.
We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Richter,Moskowitz, Feinman and Gische, JJ.