People v Khan

People v Khan 2013 NY Slip Op 08384 Decided on December 17, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 17, 2013
Friedman, J.P., Acosta, Renwick, Manzanet-Daniels, Gische, JJ.
11360 5014/10

[*1]The People of the State of New York, Respondent,

v

Mohammed Khan, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York (Jan
Hoth of counsel), and White & Case LLP, New York (Louis
O'Neill of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Nicole
Coviello of counsel), for respondent.

Judgment, Supreme Court, New York County (Analisa Torres, J.), rendered August 1, 2011, convicting defendant, after a jury trial, of sexual abuse in the first degree, forcible touching and endangering the welfare of a child, and sentencing him to an aggregate term of 3 years, unanimously affirmed.

Defendant did not preserve his contention that the court's jury instructions were deficient because they did not inform the jury that the People were required to prove the specific conduct alleged in the indictment. This is a claim requiring preservation (see People v Whitecloud, 110 AD3d 626 [1st Dept 2013]), and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Grega, 72 NY2d 489, 496 [1988]). The court's instructions included all the elements of the crimes charged. Given the trial evidence, there is no reasonable possibility that the jury convicted defendant on any factual theory other than the one alleged in the indictment. Defendant's arguments to the contrary are based on speculation.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 17, 2013

CLERK