PEOPLE v. GRUGAN (2026)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Richard McNally Jr., J.), rendered June 23, 2022 in Albany County, upon a verdict convicting defendant of the crime of predatory sexual assault against a child.

Based upon allegations that defendant sexually abused a victim (born 2008) in 2019 and 2020, defendant was charged by indictment with predatory sexual assault against a child.  Following a jury trial, defendant was found guilty as charged and was thereafter sentenced to 15 years to life in prison.  Defendant appeals, and we affirm.

As charged to the jury, “[a] person is guilty of predatory sexual assault against a child when, being [18] years old or more, he or she commits the crime of ․ course of sexual conduct against a child in the first degree ․ and the victim is less than [13] years old” (Penal Law § 130.96;  see People v. Hansel, 200 AD3d 1327, 1328 [3d Dept 2021], lv denied 38 NY3d 927 [2022] ).  In turn, a person is guilty of course of sexual conduct against a child in the first degree “when, over a period of time not less than three months in duration ․ he or she, being [18] years old or more, engages in two or more acts of sexual conduct, which include at least one act of ․ oral sexual conduct ․ with a child less than 13 years old” (Penal Law § 130.75 [former (1)(b) ];  see People v. Ferrara, 243 AD3d 962, 963 [3d Dept 2025], lv denied 45 NY3d 945 [2026] ).  Oral sexual conduct was defined as “conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina” (Penal Law § 130.00 [former (2)(a) ] ).

Against that backdrop, defendant contends that the evidence is not legally sufficient to establish the element of oral sexual conduct.  Initially, “defendant's legal sufficiency claim is unpreserved because his general motion for a trial order of dismissal did not include arguments directed at specific deficiencies in the proof” (People v. Gertz, 204 AD3d 1166, 1167 [3d Dept 2022] [internal quotation marks and citation omitted], lv denied 38 NY3d 1070 [2022];  see People v. Baez, 232 AD3d 1044, 1044–1045 [3d Dept 2024] ).  Defendant further contends that the verdict is against the weight of the evidence, and that contention “bears no preservation requirement, [and] requires consideration of the adequacy of the evidence as to each element of the charged crime[ ]” (People v. Burdo, 210 AD3d 1306, 1307 [3d Dept 2022] [internal quotation marks, brackets and citation omitted], lv denied 39 NY3d 1077 [2023];  see People v. Shackelton, 177 AD3d 1163, 1165 [3d Dept 2019], lv denied 34 NY3d 1162 [2020] ).

The victim testified to multiple acts of sexual conduct that occurred outdoors, in defendant's home, in his vehicle and in the garage, over the course of a year between the summer of 2019 and fall 2020.¹  The victim recalled specific occasions when defendant used his hand to touch her “pee spot,” which, contrary to defendant's view, the jury could reasonably infer meant her vagina (cf.  Matter of James C., 44 AD3d 1148, 1149 [3d Dept 2007];  People v. Harris, 31 AD3d 1189, 1189 [4th Dept 2006], lv denied 7 NY3d 848 [2006] ).  The victim also testified that defendant placed his mouth on her genitals and that he placed his “member” in her mouth.

As there was no direct physical or other eyewitness evidence presented to the jury, and the victim's account of certain incidents of alleged sexual abuse lacked detail, an acquittal would not have been unreasonable (see People v. Harris, 246 AD3d 1300, 1303 [3d Dept 2026], lv denied 45 NY3d 971 [2026];  People v. Robbins, 236 AD3d 1097, 1100 [3d Dept 2025] ).  That said, nothing in the record demonstrates that the victim's trial testimony was incredible as a matter of law, and the victim's inability to recollect specific dates of certain incidents, along with the lack of medical evidence of the crime, were fully explored at trial (see People v. Swartz, 235 AD3d 1098, 1101 [3d Dept 2025];  People v. Hansel, 200 AD3d at 1330).  Further, the victim's account was circumstantially supported by testimony from defendant's wife and the victim's father, who confirmed that defendant and the victim were alone together on some of the occasions of alleged sexual abuse.  Therefore, viewing the evidence in a neutral light and deferring to the jury's assessment of the witnesses' credibility, the verdict is not against the weight of the evidence (see People v. Bessette, 246 AD3d 1310, 1312 [3d Dept 2026], lv denied 45 NY3d 1014 [2026];  People v. Wells, 224 AD3d 1155, 1158 [3d Dept 2024], lv denied 42 NY3d 941 [2024] ).

Next,² and notwithstanding the People's initial plea offer of seven to nine years in prison, along with defendant's age and health, and the fact that this is his first criminal conviction, we are not persuaded that defendant's prison term of 15 years to life is unduly harsh or severe (see People v. Mayette, 233 AD3d 1097, 1105 [3d Dept 2024], lv denied 43 NY3d 945 [2025];  see generally People v. Brisman, 43 NY3d 322, 330–331 [2025] ).  We therefore decline to modify it as a matter of discretion, in the interest of justice (see CPL 470.15[6][b] ).  Defendant's remaining contentions, to the extent not specifically addressed, have been considered and are without merit.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Evidence at trial established – and defendant does not dispute – that, during the relevant period, defendant was over 18 years old and the victim was less than 13 years old (see Penal Law § 130.96).

2.   To the extent that defendant contends his sentence is vindictive, his contention is unpreserved as he failed to raise it at sentencing (see People v. Brisman, 236 AD3d 1092, 1093 [3d Dept 2025];  People v. Williams, 163 AD3d 1160, 1165 [3d Dept 2018], lv denied 32 NY3d 1179 [2019] ).

Aarons, J.P.

Reynolds Fitzgerald, Fisher, Powers and Mackey, JJ., concur.