PEOPLE v. CELLERI (2025)

Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered August 2, 2023, as amended on November 27, 2023, convicting defendant, after a jury trial, of sexual abuse in the first degree (four counts), course of sexual conduct against a child in the second degree, and endangering the welfare of a child (two counts), and sentencing him to an aggregate prison term of 12 years, unanimously affirmed.

Defendant failed to preserve his claim that the People did not prove that his conduct was for the purpose of sexual gratification (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008]), and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits, and we find that the sexual abuse and course of sexual conduct against a child counts were based on legally sufficient evidence and were not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007], see also People v. Baque, 43 N.Y.3d 26, 229 N.Y.S.3d 62, 254 N.E.3d 606 [2024]).  One young victim testified that she woke up to find defendant rubbing her thigh and her shorts pulled halfway down her legs (Penal Law § 130.00[3], [7];  People v. Bartell, 221 A.D.3d 416, 197 N.Y.S.3d 231 [1st Dept. 2023], lv denied 41 N.Y.3d 1017, 214 N.Y.S.3d 309, 237 N.E.3d 1249 [2024];  People v. Sene, 66 A.D.3d 427, 427–428, 887 N.Y.S.2d 8 [1st Dept. 2009], lv denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010]).  Defendant repeatedly touched her vagina in several subsequent incidents over a period of two years (Penal Law § 130.80[1][b]).  Moreover, her mother and sisters testified to her changed behavior during the period of the abuse.  The other victim testified about two incidents in which defendant rubbed her vagina, once with his penis (see People v. Cardona, 261 A.D.2d 202, 690 N.Y.S.2d 206 [1st Dept. 1999], lv denied 93 N.Y.2d 967, 695 N.Y.S.2d 53, 716 N.E.2d 1098 [1999]).  Defendant's intent to attain sexual gratification was inferable from his actions (see Matter of Najee A., 26 A.D.3d 258, 258–259, 809 N.Y.S.2d 80 [1st Dept. 2006], lv denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241 [2006]).

The court providently exercised its discretion in permitting the People to introduce as a prior consistent statement text messages from months before one of the victims reported her abuse, to rehabilitate her credibility after defense counsel's questioning during cross-examination suggested that she had fabricated her claims after her mother beat her (see People v. McDaniel, 81 N.Y.2d 10, 18, 595 N.Y.S.2d 364, 611 N.E.2d 265 [1993]).  In any event, any error was harmless (People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

We perceive no basis for disturbing the sentence.