Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Alfred L. LIGAMMARI, Jr., Defendant–Appellant.
Evan Lumley, Buffalo, for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
Evan Lumley, Buffalo, for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
Opinion
MEMORANDUM: Defendant appeals from a judgment convicting him following a jury trial of six counts each of criminal sexual act in the first degree (Penal Law § 130.50[1] ) and criminal sexual act in the third degree (§ 130.40[2] ), and one count each of sexual abuse in the first degree (§ 130.65 [1 ] ), attempted rape in the first degree (§§ 110.00, 130.35[1] ), attempted rape in the third degree (§§ 110.00, 130.25[2] ), and endangering the welfare of a child (§ 260.10[1] ). By failing to renew his motion for a trial order of dismissal after presenting evidence, defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 ). In any event, defendant's contention is without merit. Viewing the evidence in the light most favorable to the People, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that there is a valid line of reasoning and permissible inferences from which the jury could conclude that the elements of the crimes were proven beyond a reasonable doubt (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). We further conclude that, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to defendant's contention, Supreme Court did not abuse its discretion by continuing the trial in defendant's absence when defendant did not appear in court on the final day of trial. The record establishes that the court had given defendant the requisite warnings (see People v. Parker, 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 ), and he therefore waived his right to be present at trial (see People v. Zafuto, 72 A.D.3d 1623, 1623–1624, 902 N.Y.S.2d 269, lv. denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 ; People v. Jones, 31 A.D.3d 1193, 1193, 817 N.Y.S.2d 849, lv. denied 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144 ). Contrary to defendant's further contention, “[t]he fact that defendant was arrested [in another state] for other charges while the jury was deliberating did not restore his right to be present” (People v. Larkin, 281 A.D.2d 915, 916, 723 N.Y.S.2d 293, lv. denied 96 N.Y.2d 864, 730 N.Y.S.2d 38, 754 N.E.2d 1121 ; see People v. Herrera, 219 A.D.2d 511, 511, 631 N.Y.S.2d 660, lv. denied 87 N.Y.2d 847, 638 N.Y.S.2d 605, 661 N.E.2d 1387 ).
Finally, we agree with defendant that the sentence of incarceration is unduly harsh and severe. Thus, as a matter of discretion in the interest of justice (see generally CPL 470.15[6][b] ), we modify the judgment by reducing the sentence imposed for attempted rape in the first degree to a determinate term of incarceration of 3 ½ years, with the 10–year period of postrelease supervision imposed by the court, thereby reducing the aggregate sentence to a determinate term of incarceration of 35 ½ years, with a period of 10 years of postrelease supervision.
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence imposed for attempted rape in the first degree to a determinate term of imprisonment of 3 ½ years and as modified the judgment is affirmed.