Opinion
2006-1129 W CR.
Decided June 29, 2009.
Appeal from a judgment of the Justice Court of the Town of Mamaroneck, Westchester County (Jean Brescia, J.), rendered May 8, 2006. The judgment convicted defendant, after a nonjury trial, of endangering the welfare of a child and of two counts of sexual abuse in the second degree.
Judgment of conviction modified, on the law, by vacating the conviction of the second count of sexual abuse in the second degree and dismissing said count; as so modified, affirmed.
PRESENT: RUDOLPH, P.J., TANENBAUM and NICOLAI, JJ.
In an amended information, the People charged defendant with two counts of sexual abuse in the second degree (Penal Law § 130.60) and two counts of endangering the welfare of a child (Penal Law § 260.10) following an incident wherein defendant allegedly engaged in sexual contact with his 13-year-old grand-niece, in a van occupied by several other family members, while traveling on I-95 in Westchester County between the New Rochelle toll plaza and the Connecticut border. Prior to trial, defendant moved, inter alia, to dismiss the second count of each offense as multiplicitous with respect to the first count. The Justice Court granted so much of the motion as sought to dismiss the second count of endangering the welfare of a child. After a nonjury trial, the Justice Court convicted defendant of the three remaining counts, delivering its verdict 24 days after the conclusion of trial. Defendant appeals, alleging that the second count of sexual abuse in the second degree should have been dismissed as multiplicitous, that the People failed to establish territorial and geographical jurisdiction, that the delay in rendering the verdict was unreasonable, and that the convictions were against the weight of the evidence. We agree that the second count of sexual abuse in the second degree should have been dismissed, but find the remainder of defendant's claims either unpreserved for appellate review or without merit.
The information alleged, and the trial proof substantiated, that defendant, seated next to the victim in a van being driven by the victim's mother, touched the victim first on the breast and then on the vagina, during a course of conduct that lasted, at most, several minutes. "An [accusatory instrument] cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct" ( People v Quinones , 8 AD3d 589, 589-590), that is, unless the acts may properly be characterized as "separate and discrete" ( People v Brioso, 278 AD2d 103, 103; see e.g. People v Nailor, 268 AD2d 695, 696; People v Yankowitz, 169 AD2d 748). Although defendant allegedly touched more than one area of the victim's sexual or intimate parts during the incident, because the conduct constituted but a single, uninterrupted occurrence of . . . contact with a person under age 14," defendant could not be charged with separate counts of sexual abuse in the second degree for each part touched ( People v Moffitt , 20 AD3d 687, 690-691; see also People v Watkins, 300 AD2d 1070, 1071; People v Wooden, 289 AD2d 1083, 1084; People v Beddoe, 110 AD2d 843, 843-844; People v Grant, 108 AD2d 823; cf. People v Grosso, 281 AD2d 986, 988; People v Smithers, 255 AD2d 916, 917). Accordingly, the conviction of the second count of sexual abuse in the second degree is vacated and the count dismissed ( People v Cruz , 41 AD3d 893, 894; Nailor, 268 AD2d at 696 n 1; People v Smith, 113 AD2d 905, 908).
We find defendant's challenge to the sufficiency of the trial proof of the territorial jurisdiction of New York State ( see CPL 20.20; People v McLaughlin, 80 NY2d 466, 471) to be without merit. The proof sufficed to establish that at least an element of each offense occurred in New York State (CPL 20.20 [a]; People v Kassebaum, 95 NY2d 611, 618-619; People v Giordano, 87 NY2d 441, 446). Even if we assume, arguendo, that defendant's challenges to the sufficiency of the proof of the geographical jurisdiction of Westchester County (CPL 20.40) and of the Justice Court of the Town of Mamaroneck (CPL 20.50) are not waived ( but see People v Carvajal, 6 NY3d 305 ), they are clearly not preserved for appellate review ( see CPL 470.05), and, in any event, lack merit. The People were required to prove venue only by a preponderance of the evidence ( People v Greenberg, 89 NY2d 553, 555-556; People v Stewart , 20 AD3d 769, 771). In light of the inability of the witnesses to establish that the offenses occurred in an "ascertainable location" ( People v Curtis, 286 AD2d 901, 902; People v Bailey, 133 AD2d 462), an inference supported by the testimony that the offenses commenced at about 11:45 P.M. in a moving vehicle somewhere near the New Rochelle I-95 toll plaza, and continued for a time until the victim asked her mother to stop the van, which occurred sometime after the vehicle passed the Connecticut border, the proof established that venue was properly in a court of appropriate subject matter jurisdiction in any political subdivision through which the vehicle passed in Westchester County, including Mamaroneck (CPL 20.40 [g]; 20.50 [1], [2]; see People v Ribowsky, 77 NY2d 284, 291; People v Moore, 46 NY2d 1, 8; People v St. Louis, 161 AD2d 739).
While, in a nonjury case, a trial court must render a verdict within a reasonable time (CPL 350.10 [d]; 360.55; People v South, 41 NY2d 451, 454), defendant did not preserve his claim that the 24-day delay between trial and verdict was so excessive as to have denied him his right to a speedy trial or otherwise prejudiced his right to due process (CPL 470.05; People v Torrence, 305 AD2d 1042, 1043-1044; People v Francis, 189 AD2d 822, 823 ; People v Waldron, 162 AD2d 485, 486; People v Woodley, 141 AD2d 587, 588). In any event, it cannot be said that the delay was unreasonable. "There is no specific number of days within which a court must render its verdict" ( People v Santana, 232 AD2d 663, 663), and whether the delay is unreasonable "turn[s] largely on the circumstances of the individual case," the most salient of which are whether the court issues a written decision, the complexity of the issues of fact and law, and the nature and quantity of the evidence to be reviewed ( South, 41 NY2d at 454; see also Santana, 232 AD2d at 664; Francis, 189 AD2d at 823). Here, the Justice Court was required to resolve conflicting testimony among several witnesses presented by the People and the defense, certain of whose credibility was challenged, and to determine the probative value of defendant's statements, including defendant's confession and a letter he wrote to the victim after the offenses. Upon our review of this record, we are not persuaded that 24 days was an unreasonable period in which to resolve those questions in light of the appropriate standards of proof. We note that defendant offers no basis on which to infer that he was otherwise prejudiced by the delay ( Francis, 189 AD2d at 823; People v Andrews, 102 AD2d 894).
Defendant's challenge to the legal sufficiency of the evidence to establish his guilt of sexual abuse in the second degree and endangering the welfare of a child is limited to the claim that the confession and the testimony of the People's witnesses, principally that of the victim, the sole source of the facts necessary to establish the elements of the offenses, were incredible as a matter of law. This claim is not preserved for appellate review (CPL 470.05; People v Hawkins, 11 NY3d 484, 492; People v Gray, 86 NY2d 10, 19; People v Gouvatsos ,45 AD3d 779, 780). In any event, viewing the evidence in the light most favorable to the People ( People v Contes, 60 NY2d 620, 621), we cannot conclude that the content of the victim's testimony was so hopelessly contradictory, or so unworthy of belief, particularly in light of defendant's admissions, that it was irrational for the Justice Court to determine, beyond a reasonable doubt, that defendant had committed the offenses ( see People v Calabria, 3 NY3d 80, 82-83; People v Gumbs ,58 AD3d 641). Moreover, according, as we must, great deference to the Justice Court's credibility determinations ( People v Lane , 7 NY3d 888, 890; see also People v Romero , 7 NY3d 633, 644-645; People v Bleakley, 69 NY2d 490, 495), upon our own review of the evidence (CPL 470.15; People v Danielson , 9 NY3d 342, 348), we are satisfied that the verdict was not against the weight of the evidence.
Accordingly, the judgment of conviction is affirmed as to the remaining counts of sexual abuse in the second degree and endangering the welfare of a minor.
Rudolph, P.J., Tanenbaum and Nicolai, JJ., concur.