Opinion
570296/02.
Decided February 26, 2004.
Defendant appeals from (1) a judgment of the Criminal Court, New York County, rendered August 7, 2001 after a nonjury trial (James P. Sullivan, J.) convicting him of sexual abuse in the third degree (Penal Law 130.55) and sentencing him to three years of probation, and (2) an order of the same court and Judge entered on or about January 29, 2002 which denied defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10.
Judgment of conviction rendered August 7, 2001 (James P. Sullivan, J.) and order entered on or about January 29, 2002 (James P. Sullivan, J.) modified, on the law, to reduce defendant's sentence to a one-year term of probation, and otherwise affirmed.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. MARTIN SCHOENFELD, Justices.
Defendant's conviction of third-degree sexual abuse (Penal Law § 130.55) was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility, including those raised by the complainant's filing of a civil law suit in connection with the incident, were fully explored at trial and presented questions best determined by the finder of fact, in this case the trial court, which saw and heard the witnesses ( see, People v. Gaimari, 176 NY 84, 94). We find no basis to disturb the court's determination rejecting the defendant's version of events, while crediting the complainant's account of the unwanted sexual touching to which she was subjected in defendant's office.
The court properly denied defendant's CPL 440.10 motion to vacate the judgment. The alleged newly discovered evidence — an audiotape of a telephone conversation in which the complainant reported the incident to defendant's employer the day after its occurrence — was consistent with the People's main trial theory. To the extent that the evidence may have constituted impeachment material, it cannot reasonably be argued that its receipt at this nonjury trial would have created the probability of a more favorable verdict ( see, People v. Salemi, 309 NY 208, 215-216; People v. Taylor, 246 AD2d 410, 412, lv denied 91 NY2d 978; People v. Bueno, 276 AD2d 261). Nor is there record support for the defendant's present contention that the prosecution was somehow delinquent in investigating whether its Brady obligations were implicated by the possible, yet unknown existence of "any other taped conversation" involving the complainant ( see, People v. Parker, 283 AD2d 973, lv denied 96 NY2d 905).
As the People concede, a one-year probationary sentence represents the mandatory term of probation for defendant's conviction of the class B misdemeanor charged herein ( see, Penal Law § 65.00[c]), and we reduce defendant's sentence accordingly.
We have considered and rejected defendant's remaining argument.
This constitutes the decision and order of the court.