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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Israel CASTRO, Defendant-Appellant.

Decided: September 28, 2001

PRESENT:  WISNER, J. P., HURLBUTT, SCUDDER, KEHOE and BURNS, JJ. Shirley A. Gorman, for defendant-appellant. Nancy A. Gilligan, for plaintiff-respondent.

Defendant appeals from a judgment convicting him of sodomy in the first degree (Penal Law § 130.50[1] ), sodomy in the third degree (Penal Law § 130.40 [2] ), sexual abuse in the first degree (Penal Law § 130.65[1] ), and sexual abuse in the third degree (Penal Law § 130.55).   Defendant was sentenced as a second felony offender to concurrent terms of incarceration, the longest of which is 12 1/212 to 25 years.   On appeal, defendant contends that the evidence is legally insufficient to establish forcible compulsion and defendant's age, that the verdict is against the weight of the evidence on those elements, that County Court's Ventimiglia ruling was erroneous and in any event was violated by the People, and that the sentence of six months imposed on the conviction of sexual abuse in the third degree is illegal.

 We modify the judgment by reversing the conviction of sodomy in the third degree, vacating the sentence imposed thereon and dismissing count four of the indictment.   Defendant failed to preserve for our review the issue of the sufficiency of proof of his age by making a motion to dismiss specifically directed at that issue (see, People v. Kleinhans, 236 A.D.2d 790, 653 N.Y.S.2d 877, lv. denied 89 N.Y.2d 1096, 660 N.Y.S.2d 390, 682 N.E.2d 991).   Nevertheless, we exercise our power to review the issue as a matter of discretion in the interest of justice (see, CPL 470.05[2];  cf., People v. Kleinhans, supra ) and conclude that the evidence is legally insufficient to establish that defendant was “twenty-one years old or more” (Penal Law § 130.40 [2] ) at the time of the crime.   Contrary to the People's contention, the jury's opportunity to observe defendant's appearance during trial does not, by itself, satisfy the People's obligation to prove defendant's age (see, People v. Perryman, 178 A.D.2d 916, 918, 578 N.Y.S.2d 785, lv. denied 79 N.Y.2d 1005, 584 N.Y.S.2d 460, 594 N.E.2d 954;  People v. Blodgett, 160 A.D.2d 1105, 1106, 553 N.Y.S.2d 897, lv. denied 76 N.Y.2d 731, 558 N.Y.S.2d 892, 557 N.E.2d 1188).   The jury is entitled to draw an inference from the appearance of an individual, provided that there is some competent proof of his or her age (see, People v. Perryman, supra, at 918, 578 N.Y.S.2d 785;  People v. Patterson, 149 A.D.2d 966, 540 N.Y.S.2d 626, lv. denied 74 N.Y.2d 745, 545 N.Y.S.2d 119, 543 N.E.2d 762;  see also, People v. White, 149 A.D.2d 939, 540 N.Y.S.2d 72, lv. denied 74 N.Y.2d 821, 546 N.Y.S.2d 579, 545 N.E.2d 893).   Here, however, there is no direct evidence of defendant's age, and the circumstantial evidence relied upon by the People does not establish that defendant was at least 21 years old at the time of the crime (cf., People v. Rosio, 220 A.D.2d 851, 852, 632 N.Y.S.2d 255, lv. denied 86 N.Y.2d 875, 635 N.Y.S.2d 956, 659 N.E.2d 779;  People v. Perryman, supra, at 918, 578 N.Y.S.2d 785).

We further modify the judgment by reducing the definite term of incarceration imposed on the conviction of sexual abuse in the third degree from six months to three months.   As the People concede, the maximum permissible sentence on that class B misdemeanor is three months (see, Penal Law § 70.15[2];  § 130.55;  see also, People v. Coleman, 278 A.D.2d 891, 718 N.Y.S.2d 504, lv. denied 96 N.Y.2d 798, 726 N.Y.S.2d 376, 750 N.E.2d 78;  People v. Campbell, 248 A.D.2d 997, 998, 670 N.Y.S.2d 136, lv. denied 92 N.Y.2d 848, 677 N.Y.S.2d 79, 699 N.E.2d 439).

We have examined defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously modified on the law and as modified affirmed.