PEOPLE v. FOSS III (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts of sexual abuse in the first degree (Penal Law § 130.65[3] ).   We reject defendant's contention that the evidence is legally insufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Although the victims testified that they were not certain when the incidents underlying the charges occurred, a police investigator testified that she spoke with the victims and their mother in December 2001 after receiving a telephone call from a probation officer who expressed “concerns” about defendant.   We thus conclude that there is a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury,” i.e., that the crimes were committed in 2001, at which time the victims were less than 11 years old (id.;   see People v. Adams, 43 A.D.3d 1423, 1424, 842 N.Y.S.2d 848, lv. denied 9 N.Y.3d 1004, 850 N.Y.S.2d 392, 880 N.E.2d 878).

 We agree with defendant, however, that the imposition of consecutive sentences with respect to each count renders the sentence unduly harsh and severe, and we therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with respect to each other (see CPL 470.15[6][b];  see generally People v. Bailey, 17 A.D.3d 1022, 1023, 794 N.Y.S.2d 223, lv. denied 5 N.Y.3d 803, 803 N.Y.S.2d 32, 836 N.E.2d 1155).

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with respect to each other and as modified the judgment is affirmed.

MEMORANDUM: