PEOPLE v. WEBER (2007)

Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered October 3, 2002, upon a verdict convicting defendant of the crimes of sexual abuse in the second degree (10 counts) and endangering the welfare of a child (five counts).

Defendant was indicted on 37 counts related to his sexual contact with several young girls.   After several counts were dismissed, others were severed and dealt with in a separate trial (25 A.D.3d 919, 807 N.Y.S.2d 222 [2006], lv. denied 6 N.Y.3d 839, 814 N.Y.S.2d 88, 847 N.E.2d 385 [2006] ).   Defendant was then tried on 17 counts concerning nine victims.   These victims mainly alleged that defendant touched their buttocks or vaginas while they were in his pool or hot tub.   The jury acquitted defendant of two counts, but convicted him of 10 counts of sexual abuse in the second degree and five counts of endangering the welfare of a child.   County Court sentenced defendant to 15 consecutive one-year jail terms.   Defendant now appeals.

 County Court correctly refused defendant's request, without holding a hearing, to admit the results of his polygraph examination into evidence, as he failed to show that such examinations are scientifically reliable, and New York courts have previously found that the results are not generally accepted as reliable (see People v. Angelo, 88 N.Y.2d 217, 223, 644 N.Y.S.2d 460, 666 N.E.2d 1333 [1996];  People v. Shedrick, 66 N.Y.2d 1015, 1018, 499 N.Y.S.2d 388, 489 N.E.2d 1290 [1985];  Matter of Loren B. v. Heather A., 13 A.D.3d 998, 999, 788 N.Y.S.2d 215 [2004], lv. denied 4 N.Y.3d 710, 797 N.Y.S.2d 816, 830 N.E.2d 1145 [2005] ).   The court also did not err in reaching a Sandoval compromise, permitting defendant to be cross-examined about the existence of his prior felony conviction, without disclosing the nature of the conviction, the underlying facts or the exact sentence imposed (see People v. Kirton, 36 A.D.3d 1011, 1013, 827 N.Y.S.2d 352 [2007];  People v. Long, 269 A.D.2d 694, 696, 703 N.Y.S.2d 316 [2000], lv. denied 94 N.Y.2d 950, 710 N.Y.S.2d 6, 731 N.E.2d 623 [2000] ).

 Defendant's convictions were supported by legally sufficient evidence and not against the weight of the evidence.   He argues that the People did not submit proof that he acted for the purpose of sexual gratification, but that element can be inferred from the circumstances and defendant's conduct (see People v. Hill, 34 A.D.3d 1130, 1131, 824 N.Y.S.2d 802 [2006];  People v. Ortiz, 16 A.D.3d 831, 833, 791 N.Y.S.2d 709 [2005], lv. denied 4 N.Y.3d 889, 798 N.Y.S.2d 734, 831 N.E.2d 979 [2005];  People v. Watson, 281 A.D.2d 691, 697, 721 N.Y.S.2d 700 [2001], lv. denied 96 N.Y.2d 925, 732 N.Y.S.2d 643, 758 N.E.2d 669 [2001] ).   In addition to implying a purpose of sexual gratification, subjecting young girls to unwanted touching of their intimate parts can reasonably be considered injurious to their mental or moral welfare so as to constitute endangering the welfare of a child (see Penal Law § 260.10 [1];  People v. Hill, supra at 1132, 824 N.Y.S.2d 802).   Giving deference to the jury's apparent credibility determinations in favor of most of the victims, upon our independent review of the record we find that the verdict was not against the weight of the evidence (see People v. Perkins, 27 A.D.3d 890, 892, 810 N.Y.S.2d 596 [2006], lvs. denied 6 N.Y.3d 897, 817 N.Y.S.2d 632, 850 N.E.2d 679 [2006], 7 N.Y.3d 761, 819 N.Y.S.2d 886, 853 N.E.2d 257 [2006];  People v. Durant, 6 A.D.3d 938, 940-941, 774 N.Y.S.2d 839 [2004], lv. denied 3 N.Y.3d 639, 782 N.Y.S.2d 410, 816 N.E.2d 200 [2004] ).

 County Court did not err in denying defendant's motion for a mistrial following the People's summation.   A mistrial or reversal is only required based on prosecutorial misconduct when the conduct caused substantial prejudice so that the defendant was denied due process (see People v. Hendrie, 24 A.D.3d 871, 873, 805 N.Y.S.2d 464 [2005], lv. denied 6 N.Y.3d 776, 811 N.Y.S.2d 343, 844 N.E.2d 798 [2006] ).   Factors in resolving this question are “the severity and frequency of the conduct, whether the trial court took appropriate action to dilute the effect of the conduct and whether, from a review of the evidence, it can be said that the result would have been the same absent such conduct” (People v. Tarantola, 178 A.D.2d 768, 770, 577 N.Y.S.2d 686 [1991], lv. denied 79 N.Y.2d 954, 583 N.Y.S.2d 208, 592 N.E.2d 816 [1992] ).   Although some of the prosecutor's comments were improper, the court sustained several of defendant's objections and other objections were properly overruled because the prosecutor's comments interpreted record evidence or responded to the defenses raised (see People v. Roberts, 12 A.D.3d 835, 837-838, 784 N.Y.S.2d 692 [2004], lv. denied 4 N.Y.3d 802, 795 N.Y.S.2d 178, 828 N.E.2d 94 [2005] ).   Hence, defendant was not deprived of a fair trial (see People v. Hendrie, supra at 873, 805 N.Y.S.2d 464).

Defendant's argument alleging the excessiveness of his sentence is academic.   By operation of law, defendant's definite sentences here merged with and are satisfied by his service of his indeterminate sentences imposed at his trial on the severed charges (see Penal Law § 70.35;  People v. Muscoreil, 237 A.D.2d 970, 971, 655 N.Y.S.2d 224 [1997];  see also People v. Leabo, 84 N.Y.2d 952, 953, 620 N.Y.S.2d 820, 644 N.E.2d 1376 [1994] ).

ORDERED that the judgment is affirmed.

KANE, J.

CARDONA, P.J., CREW III, SPAIN and LAHTINEN, JJ., concur.