PEOPLE v. LAMPHIER (2003)

Defendant appeals from a judgment ostensibly convicting him, following a bench trial, of two counts of course of sexual conduct against a child in the first degree (Penal Law former § 130.75[1][a] ) and sentencing him to an indeterminate term of incarceration of 7 to 14 years.   In fact, as defendant notes and the People concede, the conviction was of a single count of course of sexual conduct against a child in the first degree, and the certificate of conviction must be amended to reflect that fact (see People v. LeFrois, 138 A.D.2d 943, 526 N.Y.S.2d 409, lv. denied 72 N.Y.2d 920, 532 N.Y.S.2d 854, 529 N.E.2d 184, order vacated on other grounds 151 A.D.2d 1046, 544 N.Y.S.2d 508, on reh. 155 A.D.2d 949, 548 N.Y.S.2d 962, lv. dismissed 76 N.Y.2d 791, 559 N.Y.S.2d 996, 559 N.E.2d 690;  cf.  People v. Benson, 265 A.D.2d 814, 816, 697 N.Y.S.2d 222, lv. denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097, cert. denied 529 U.S. 1076, 120 S.Ct. 1694, 146 L.Ed.2d 499).   We modify the judgment accordingly.

 Defendant's remaining contentions are lacking in merit.   Defendant's written waiver of the right to a jury trial was knowingly, voluntarily and intelligently executed in open court, and thus County Court properly accepted the waiver (see N.Y. Const., art. I, § 2;  CPL 320.10 [2];  People v. Terrell, 277 A.D.2d 931, 715 N.Y.S.2d 358, lv. denied 96 N.Y.2d 788, 725 N.Y.S.2d 653, 749 N.E.2d 222;  People v. Medina, 202 A.D.2d 256, 257, 608 N.Y.S.2d 648, lv. denied 83 N.Y.2d 913, 614 N.Y.S.2d 395, 637 N.E.2d 286).   Contrary to defendant's further contention, the court did not permit the People to elicit the opinion of the victim's examining pediatrician concerning the victim's credibility.   Defense counsel previously had elicited such opinion testimony on cross-examination and, on redirect examination, the prosecutor merely questioned the pediatrician concerning the basis for her previously expressed opinion, specifically asking whether she was accustomed to relying on medical histories furnished by her patients. Even assuming, arguendo, that there was any error, we conclude that “it is presumed that the Judge sitting as the trier of fact made [her] decision based upon appropriate legal criteria” (People v. Lucas, 291 A.D.2d 890, 891, 737 N.Y.S.2d 732 [internal quotation marks omitted] ).

 The conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Contrary to defendant's contention, there is no requirement of corroboration of the victim's sworn testimony in the prosecution of a sex act to which the victim is deemed incapable of consenting based on his or her age (see Penal Law § 130.16;  People v. McLoud, 291 A.D.2d 867, 867–868, 737 N.Y.S.2d 216, lv. denied 98 N.Y.2d 678, 746 N.Y.S.2d 467, 774 N.E.2d 232;  People v. Sherman, 250 A.D.2d 873, 672 N.Y.S.2d 266).   There is no merit to defendant's contention that the indictment is insufficiently specific with respect to the time frame of the alleged course of conduct (see McLoud, 291 A.D.2d at 868, 737 N.Y.S.2d 216;  People v. Colf, 286 A.D.2d 888, 888–889, 730 N.Y.S.2d 749, lv. denied 97 N.Y.2d 655, 737 N.Y.S.2d 56, 762 N.E.2d 934;  see generally People v. Shack, 86 N.Y.2d 529, 540–541, 634 N.Y.S.2d 660, 658 N.E.2d 706).   The sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by amending the certificate of conviction to provide that defendant was convicted of one count of course of sexual conduct against a child in the first degree and as modified the judgment is affirmed.

MEMORANDUM: