THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOSEPH STEELE DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reducing the conviction of predatory sexual assault against a child under count 8 of the indictment (Penal Law former § 130.96) to attempted rape in the first degree (§§ 110.00, former 130.35 [4]) and vacating the sentence imposed on that count, and by reversing that part convicting defendant of criminal sexual act in the third degree under count 20 of the indictment (former § 130.40 [2]) and dismissing that count and as modified the judgment is affirmed and the matter is remitted to Oneida County Court for sentencing on the conviction of attempted rape in the first degree.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of predatory sexual assault against a child (Penal Law former § 130.96), two counts of sexual abuse in the first degree (§ 130.65 [3]), criminal sexual act in the second degree (former § 130.45 [1]), rape in the second degree (former § 130.30 [1]), criminal sexual act in the third degree (former § 130.40 [2]), rape in the third degree (former § 130.25 [2]), and two counts of possessing a sexual performance by a child (former § 263.16).

Defendant contends that County Court erred in refusing to suppress evidence that was seized from his cell phone. Although we agree with defendant that “indiscriminate searches of cell phones cannot be permitted” (People v Conley, 234 AD3d 1363, 1365 [4th Dept 2025]), defendant has failed to include the original search warrant, amended warrants, and supporting sworn statements in the record on appeal. Further, defendant abandoned his request for a suppression hearing with respect to the cell phone evidence (see generally People v Jiminez, 222 AD3d 438, 439 [1st Dept 2023]; People v Becoats, 88 AD2d 766, 767 [4th Dept 1982]). We conclude that “defendant failed to create a record sufficient to permit appellate review of his claim” (People v Patton, 229 AD3d 808, 809 [2d Dept 2024], lv denied 42 NY3d 1054 [2024]; see People v Highsmith, 254 AD2d 768, 770 [4th Dept 1998], lv denied 92 NY2d 983 [1998], reconsideration denied 92 NY2d 1033 [1998]; People v Brooks, 231 AD2d 867, 867 [4th Dept 1996], lv denied 89 NY2d 862 [1996]). Defendant's further contention that the court erred in admitting a recording of a controlled call is unpreserved for this Court's review (see People v Bradberry, 131 AD3d 800, 802 [4th Dept 2015], lv denied 26 NY3d 1086 [2015]; see also People v Johnson, 195 AD3d 1422, 1423 [4th Dept 2021], lv denied 37 NY3d 1146 [2021]; People v Carter, 142 AD3d 1342, 1342 [4th Dept 2016]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Defendant next contends that the conviction of four of the counts is not supported by legally sufficient evidence. Although defendant failed to preserve those contentions for our review (see CPL 470.05 [2]; People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]; People v Gray, 86 NY2d 10, 19 [1995]), we exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). A conviction is supported by legally sufficient evidence “when, viewing the facts in [the] light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Danielson, 9 NY3d 342, 349 [2007] [internal quotation marks omitted]). With respect to count 8, defendant contends that the evidence was legally insufficient to establish penetration. To find defendant guilty of predatory sexual assault against a child (Penal Law former § 130.96), as charged in count 8 of the indictment, the People were required to prove that defendant, “being [18] years old or more, ․ commit[ted] the crime of rape in the first degree ․ and the victim [was] less than [13] years old.” As set forth in the versions of the Penal Law statutes applicable at the time of the offense, “[a] person [was] guilty of rape in the first degree when [the person] engage[d] in sexual intercourse with another person ․ [w]ho [was] less than [13] years old and the actor [was] [18] years old or more” (former § 130.35 [4]), and “ ‘[s]exual intercourse’ ha[d] its ordinary meaning and occur[red] upon any penetration, however slight” (former § 130.00 [1]).

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we agree with defendant that the evidence is not legally sufficient to establish that penetration occurred when the victim was 11 years old (see People v Carroll, 95 NY2d 375, 382-384 [2000]). The victim testified that defendant “tried to put [his penis] inside of [her],” but she “screamed and cried, and he stopped.” When the court specifically asked the victim if she knew whether there was penetration when she was 11, the victim said: “I don't know.” We conclude that the evidence is legally insufficient to support the conviction of predatory sexual assault against a child, but we further conclude that the evidence is legally sufficient to support a conviction of the lesser included offense of attempted rape in the first degree (Penal Law §§ 110.00, former 130.35 [4]; see People v Moorhead, 224 AD3d 1225, 1227 [4th Dept 2024], lv denied 41 NY3d 1003 [2024]; People v Porlier, 55 AD3d 1059, 1061-1062 [3d Dept 2008]). We therefore modify the judgment accordingly, and we remit the matter to County Court for sentencing on that conviction.

With respect to defendant's conviction of criminal sexual act in the third degree (Penal Law former § 130.40 [2]) under count 20 of the indictment, defendant contends that reversal is required because the jury convicted him based on a theory that differs from the one set forth in the indictment. The People correctly concede that there was no testimony from the victim indicating that defendant engaged in oral sexual conduct with her in May 2023 as alleged in the indictment, nor was any other evidence submitted that would support count 20, and we conclude that the evidence is thus legally insufficient to support the conviction with respect to that count. We therefore modify the judgment accordingly.

We have reviewed defendant's remaining contentions with respect to legal insufficiency and conclude that they are without merit. Further, viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson, 9 NY3d at 349), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

In light of our determination, we do not address defendant's contention regarding the sentence.

Entered: October 9, 2026

Ann Dillon Flynn

Clerk of the Court