The People of the State of New York, Respondent, v. James Frey, Defendant-Appellant. (2010)

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Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered October 8, 2009, as amended October 28, 2009, convicting defendant, upon his plea of guilty, of sexual abuse in the first degree, and sentencing him, as a second child sexual assault felony offender, to a term of 5 years, unanimously affirmed.

The court properly sentenced defendant as a second child sexual assault felony offender (see Penal Law § 70.07).   It is undisputed that defendant's prior conviction involved a child less than 15 years old, and thus qualified as a predicate felony conviction under the statute.   However, since the age of the victim was not an element of defendant's present sexual abuse conviction under Penal Law § 130.65(1), the People were also required to establish that the victim of the present crime was under 15.   Thus, for enhanced sentencing purposes, the age of the victim became an additional element to be proven.   We conclude that defendant's plea allocution satisfied that requirement.   When taken together, the statements of defendant, the prosecutor and the court unequivocally demonstrate that defendant admitted the victim was 12 years old at the time of the offense, even if defendant did not use those exact words (see People v. McGowen, 42 N.Y.2d 905 [1977];  see also People v. Seeber, 4 NY3d 780, 781 [2005] ).

Since the plea allocution established, by way of defendant's admission, that the victim was under 15, a special information (see CPL 200.62[1] ) alleging that fact was unnecessary.   For the same reason, there was no violation of the principles set forth in Apprendi v. New Jersey (530 U.S. 466 [2000] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK