Opinion
April 25, 1997
Present — Denman, P.J., Pine, Callahan, Boehm and Fallon, JJ.
Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant was convicted following a bench trial of endangering the welfare of a child (Penal Law § 260.10). We reject the contention of defendant that Penal Law § 260.10 (1) is unconstitutionally vague as applied to him ( see, People v. Bergerson, 17 N.Y.2d 398, 403-404; People v. Padmore, 221 A.D.2d 663, 664, lv denied 87 N.Y.2d 1023; see also, People v Bright, 71 N.Y.2d 376).
Viewing the evidence in the light most favorable to the People ( see, People v. Contes, 60 N.Y.2d 620), we conclude that it is legally sufficient to establish defendant's guilt beyond a reasonable doubt. There is sufficient evidence from which the trier of fact could find that defendant "knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare" of the 12-year-old complainant (Penal Law § 260.10; see, People v. Padmore, supra, at 664). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict is not against the weight of the evidence ( see, People v Bleakley, 69 N.Y.2d 490, 495).
There is no merit to the contention of defendant that the photographic exhibits were admitted into evidence without proper foundation ( see, People v. Corbett, 68 A.D.2d 772, 779-780, affd 52 N.Y.2d 714). Nor is there merit to his contention that the People violated their obligation under People v. Rosario ( 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, 14 N.Y.2d 876, 15 N.Y.2d 765, cert denied 368 U.S. 866) or Brady v. Maryland ( 373 U.S. 83; see, People v. Turner, 233 A.D.2d 932).
Supreme Court properly denied defendant's motion to set aside the verdict as inconsistent or repugnant ( see, People v Loughlin, 76 N.Y.2d 804, 806-807; People v. Tucker, 55 N.Y.2d 1, 6-7, rearg denied 55 N.Y.2d 1039).
Considering all the circumstances in this case, we conclude that the imposition of a 30-day term of incarceration, as a condition of probation, is inappropriate. Therefore, we exercise our power to modify the sentence as a matter of discretion in the interest of justice by vacating the 30-day term of incarceration ( see, CPL 470.15 [b]) and otherwise affirm. (Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J. — Endangering Welfare Child.)