| People v Introne |
| 2019 NY Slip Op 03701 [172 AD3d 1538] |
| May 9, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v David W. Introne, Appellant. |
Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant.
Chad W. Brown, District Attorney, Johnstown (Amanda M. Nellis of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Fulton County (Catena, J.),rendered July 20, 2016, upon a verdict convicting defendant of the crimes of sexual abuse in thefirst degree and endangering the welfare of a child.
Defendant was charged in an indictment with sexual abuse in the first degree andendangering the welfare of a child as the result of his alleged fondling of an 11-year-old girl inDecember 2014. He was convicted as charged following a jury trial. County Court imposedconcurrent sentences of three years in prison and 10 years of postrelease supervision on thesexual abuse conviction and one year in jail on the child endangerment conviction. Defendantappeals, and we now affirm.
To the extent that defendant challenges the legal sufficiency of the evidence, he did notpreserve that argument with his general motion to dismiss at trial (see People v Hawkins, 11 NY3d484, 492 [2008]; People vSpencer, 169 AD3d 1268, 1268 [2019]). Nevertheless, as he also contends that theverdict is against the weight of the evidence, we must assess whether the elements of the chargedcrimes were established beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Vickers, 168 AD3d 1268,1269 [2019]). The charged crimes require proof that the 51-year-old defendant subjected the11-year-old victim to sexual contact (see Penal Law §§ 130.00 [3];130.65 [4]) and that he knew his conduct would "likely . . . be injurious" to thevictim's welfare (Penal Law § 260.10 [1]).
The trial evidence reflected that, following a tip that defendant had engaged in inappropriateconduct, a caseworker from the Montgomery County Department of Social Services and a StatePolice investigator interviewed the victim and others. The victim did not suggest that anythingwas amiss, but the investigator and caseworker remained concerned and elected to speak todefendant. They located defendant at his residence, and he voluntarily drove with his wife to theState Police barracks so that he could be interviewed. According to both the caseworker andinvestigator, defendant was Mirandized and confessed that he had sexual contact with the victimon several occasions. He then signed a written statement to that effect that had been prepared bythe investigator and read aloud to him. The victim later acknowledged that defendant hadinappropriately touched her and testified to the incident underlying the indictment, stating thatshe was sitting with defendant on a couch and watching a movie when defendant placed his handunder her clothing and held it against her vagina for several minutes. The victim explained thatshe did not come forward to begin with because defendant promised to buy her whatever shewanted if she remained silent, then gave her items that included an expensive guitar andcomputer tablets.
Defendant recanted his confession at trial, testifying that his medical issues left him addledduring the interview and that the investigator threatened him. His account was severely testedupon the cross-examination of him and his wife, however, and it was contradicted by theaccounts of the investigator and the caseworker. In any event, the conflicting versions of whattranspired during the interview presented a credibility issue for the jury to resolve (see People v Jaeger, 96 AD3d1172, 1174-1175 [2012], lv denied 19 NY3d 997 [2012]). Likewise, defendantchallenged the victim's testimony by pointing to her initial denials and other inconsistencies, butit was not incredible as a matter of law, and the question of whether to credit it was one for thejury (see People v Hackett, 167AD3d 1090, 1093 [2018]; People vGarcia, 141 AD3d 861, 863 [2016], lv denied 28 NY3d 929 [2016]). The jurycredited the proof that the charged abuse had occurred. Thus, although a different verdict wasarguably "a reasonable possibility, viewing the evidence in a neutral light and accordingdeference to the jury's superior opportunity to assess witness credibility, we are satisfied 'that theverdict was in accord with the weight of the evidence' " (People v Warrington, 155 AD3d1450, 1452 [2017], quoting Peoplev Lapi, 105 AD3d 1084, 1086 [2013], lv denied 21 NY3d 1043 [2013]; see People v Planty, 155 AD3d1130, 1131-1132 [2017], lv denied 30 NY3d 1118 [2018]; People v Garcia,141 AD3d at 862-863).
We are lastly unpersuaded that the sentence, which is near the statutory minimum, was harshand excessive (see Penal Law § 70.80 [4] [a] [iii]; People v Garcia,141 AD3d at 865).
Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.