PEOPLE v. STUART (1998)

Defendant was convicted after a bench trial of endangering the welfare of a child (Penal Law § 260.10[1] ) and 28 counts of sodomy in the first degree (Penal Law § 130.50[3] ), arising out of events allegedly occurring each day from December 5, 1994 through December 11, 1994.   The evidence, viewed in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is legally sufficient to support the conviction (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The verdict convicting defendant of crimes committed on December 6th and 7th, however, is against the weight of the evidence (see, People v. Van Akin, 197 A.D.2d 845, 602 N.Y.S.2d 450).  Although the victim testified on direct examination that the sexual misconduct occurred on each night in question, he admitted on cross-examination that he could not recall what happened on those two dates.   We therefore modify the judgment by reversing the conviction under counts five through 12 of the indictment, vacating the sentences imposed thereon and dismissing those counts.   Defendant was not denied effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Judgment unanimously modified on the facts and as modified affirmed.

MEMORANDUM: