People v Wilson (Max)

[*1] People v Wilson (Max) 2006 NY Slip Op 50509(U) [11 Misc 3d 137(A)] Decided on March 14, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 14, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ
2005-1046 S CR.

The People of the State of New York, Respondent,

against

Max Wilson, Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (Kevin J. Crowley, J.), rendered July 5, 2005. The judgment convicted defendant, after a nonjury trial, of sexual abuse in the second degree and endangering the welfare of a child.

Judgment of conviction affirmed.

Defendant was charged with sexual abuse in the second degree (Penal Law § 130.60 [2]) and endangering the welfare of a child (Penal Law § 260.10 [1]), arising out of an incident which occurred with a 12-year-old complainant. Following a nonjury trial, defendant was found guilty of both charges.

We note that defendant's arguments on appeal regarding the legal sufficiency of the evidence were unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that the proof as to defendant's conduct was legally sufficient to support the convictions of sexual abuse in the second degree and endangering the welfare of a child. The former charge requires a showing of "sexual contact," which is defined as "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party" (Penal Law § 130.00 [3]). The question of sexual gratification may be inferred from the nature of the act committed and the circumstances under which it occurred (see Matter of Kryzstof K., 283 AD2d 431 [2001]; People v Beecher, 225 AD2d 943 [1996]). With respect to the latter charge of endangering the welfare [*2]of a child, it is sufficient for the evidence to show that defendant acted in a manner "likely to result in harm to the child, knowing of the likelihood of such harm coming to the child" (People v Simmons, 92 NY2d 829, 830 [1998]).

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]). It is well settled that the credibility of witnesses is a question of fact, and the resolution of issues of credibility, as well as the weight to be accorded the evidence presented, is to be decided by the trier of fact, which had the opportunity to see and hear the witnesses (see People v Gaimari, 176 NY 84, 94 [1903]). The determination of the trier of fact should be accorded great weight on appeal, and should not be disturbed unless clearly unsupported by the record (see People v Garafolo, 44 AD2d 86, 88 [1974]). In the instant case, the trial court stated on the record its reasons for finding the testimony of the prosecution witnesses to be more credible than that of the defense witness, and it cannot be said upon this record that the verdict was against the weight of the evidence.

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.
Decision Date: March 14, 2006