Opinion
No. 910 KA 06-01719.
June 13, 2008.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), rendered May 3, 2006. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the first degree and endangering the welfare of a child.
DAVID R. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT.
JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH (BROOKS T. BAKER OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Martoche, Green, Pine and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence imposed for course of sexual conduct against a child in the first degree to a determinate term of incarceration of 15 years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [a]) and endangering the welfare of a child (§ 260.10 [1]). We reject the contention of defendant that he was denied effective assistance of counsel based upon defense counsel's representation of the victim's father, a prosecution witness, in an unrelated matter. The record establishes that defense counsel first informed defendant of the potential conflict and that County Court thereafter conducted a Gomberg inquiry. Defendant agreed following that inquiry to defense counsel's continuing representation, and it thus cannot be said that he was denied effective assistance of counsel based on the potential conflict ( see People v Floyd, 45 AD3d 1457, 1459-1460, lv denied 10 NY3d 811; People v Walker, 2 AD3d 1358, 1359, lv denied 3 NY3d 650). We reject the further contention of defendant that defense counsel was otherwise ineffective in representing him ( see generally People v Baldi, 54 NY2d 137, 147). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction ( see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). Contrary to defendant's further contentions, the court's Sandoval ruling does not constitute an abuse of discretion ( see People v Tirado, 19 AD3d 712, 713, lv denied 5 NY3d 810), and the court did not abuse its discretion in restricting the cross-examination of the victim with respect to prior complaints of sexual abuse inasmuch as "defendant provided no basis for his allegation that the prior complaints were false" ( People v Benn, 213 AD2d 489, lv denied 85 NY2d 969; see People v Sprague, 200 AD2d 867, lv denied 83 NY2d 877). Also contrary to the contention of defendant, the court properly refused to suppress his statement to the police ( see People v Collins, 43 AD3d 1338, 1339, lv denied 9 NY3d 1005).
We agree with defendant, however, that the sentence is un-duly harsh and severe. Thus, as a matter of discretion in the interest of justice ( see CPL 470.15 [b]), we modify the judgment by reducing the sentence imposed for course of sexual conduct against a child in the first degree to a determinate term of incarceration of 15 years.