Opinion
2016-12945 Ind. No. 43/16
06-08-2022
The PEOPLE, etc., respondent, v. Tyron ADOLPH, appellant.
Patricia Pazner, New York, NY (Sean H. Murray of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Katherine A. Triffon of counsel), for respondent.
Patricia Pazner, New York, NY (Sean H. Murray of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Katherine A. Triffon of counsel), for respondent.
MARK C. DILLON, J.P., VALERIE BRATHWAITE NELSON, SHERI S. ROMAN, WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robert Charles Kohm, J.), rendered November 10, 2016, convicting him of predatory sexual assault against a child (two counts) and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of predatory sexual assault against a child under count 3 of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally insufficient to establish the defendant's guilt of predatory sexual assault against a child as charged in count 3 of the indictment beyond a reasonable doubt. As relevant here, a person is guilty of predatory sexual assault against a child when he or she, being 18 years old or more, 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 ). As further relevant here, a person is guilty of course of sexual conduct against a child in the first degree when, over a period of not less than three months, 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 sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, with a child less than 13 years old (id. § 130.75[1][b]). Here, there was no evidence adduced at trial regarding the time period over which the sexual abuse of the subject child was said to have occurred. Accordingly, the conviction of predatory sexual assault against a child under count 3 of the indictment and the sentence imposed thereon must be vacated, and that count of the indictment dismissed.
The defendant's contention that he was deprived of a fair trial by certain statements made by the prosecutor during summation is unpreserved for appellate review insofar as the defendant either failed to object to the challenged statements or made only general objections thereto, and did not seek curative instructions or move for a mistrial when his objections were sustained (see CPL 470.05[2] ; People v. Morris, 2 A.D.3d 652, 768 N.Y.S.2d 379 ; People v. McHarris, 297 A.D.2d 824, 748 N.Y.S.2d 57 ). In any event, the challenged statements, for the most part, constituted fair comment on the evidence and the inferences to be drawn therefrom (see People v. Fuhrtz, 115 A.D.3d 760, 981 N.Y.S.2d 611 ; People v. Birot, 99 A.D.3d 933, 952 N.Y.S.2d 293 ; People v. Guevara–Carrero, 92 A.D.3d 693, 938 N.Y.S.2d 185 ; People v. McHarris, 297 A.D.2d at 825, 748 N.Y.S.2d 57 ), or were fair response to defense counsel's comments during summation (see People v. Adamo, 309 A.D.2d 808, 765 N.Y.S.2d 651 ; People v. Clark, 222 A.D.2d 446, 634 N.Y.S.2d 714 ; People v. Vaughn, 209 A.D.2d 459, 619 N.Y.S.2d 573 ), and any improper statements were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ; People v. Svanberg, 293 A.D.2d 555, 739 N.Y.S.2d 837 ).
The sentence imposed on the defendant's remaining convictions was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contention is academic in light of the vacatur of the conviction of predatory sexual assault against a child under count 3 of the indictment (see generally People v. Brown, 235 A.D.2d 589, 652 N.Y.S.2d 336 ).
DILLON, J.P., BRATHWAITE NELSON, ROMAN and FORD, JJ., concur.