PEOPLE v. PORTERFIELD (2019)

Judgment of conviction (Harold Adler, J.), dated September 26, 2016, affirmed.

The verdict convicting defendant of attempted forcible touching (see Penal Law §§ 110/130.52) and sexual abuse in the third degree (see Penal Law § 130.55) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court's determinations concerning credibility.

Defendant was not deprived of a fair trial by the People's successive Molineux applications, all of which were denied (see People v. Groves, 63 Misc 3d 141[A], 2019 NY Slip Op 50585[U] [App Term, 1st Dept 2019]). Defendant's contention that the People's unsuccessful applications caused prejudicial evidence to be in the mind of the judge is without merit. The trial court is presumed, by virtue of learning and experience, to have considered only the competent evidence adduced in reaching its determination (see People v. Torres, 1 AD3d 621 [2003], lv denied 1 NY3d 602 [2004]), and there is nothing in the record to suggest that this presumption is inapplicable here. Furthermore, since a “party can always move to renew [a Molineux] application” during a trial (People v. Strauss, 155 AD3d 1317, 1321 [2017], lv denied 31 NY3d 1122 [2018]), the court properly alerted defendant to the possibility that the originally-excluded Molineux evidence could be introduced under certain circumstances (id.).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.