PEOPLE v. BURRS

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Philip BURRS, Defendant-Appellant.

Decided: September 29, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, AND GREEN, JJ. Norman P. Effman, Public Defender, Attica, for Defendant-Appellant. Gerald L. Stout, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65[3] ).   Defendant contends that the verdict is against the weight of the evidence because the victim's testimony did not sufficiently corroborate defendant's confession.   We reject that contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The victim, who was five years old at the time of the offense and seven years old at the time of the trial, testified that defendant touched her “private” area, and she pointed to that area for the jury.   That testimony sufficiently corroborated defendant's confession (see CPL 60.50;  People v. Nolan, 2 A.D.3d 1221, 1222, 768 N.Y.S.2d 853;  People v. Barcomb, 256 A.D.2d 926, 927, 683 N.Y.S.2d 311, lv. denied 94 N.Y.2d 798, 700 N.Y.S.2d 431, 722 N.E.2d 511;  People v. Morgan, 246 A.D.2d 686, 686-687, 667 N.Y.S.2d 470, lv. denied 91 N.Y.2d 975, 672 N.Y.S.2d 855, 695 N.E.2d 724).   Defendant did not preserve for our review his contention that County Court erred in its instructions to the jury (see CPL 470.05[2] ), and that contention is without merit in any event.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: