People v. Barnard

295 A.D.2d 999, 743 N.Y.S.2d 363

Opinion

—Appeal from a judgment of Niagara County Court (Broderick, Sr., J.), entered March 30, 2001, convicting defendant after a jury trial of use of a child in a sexual performance.

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

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of use of a child in a sexual performance (Penal Law former § 263.05). To the extent that defendant preserved for our review his contention that the conviction is not supported by legally sufficient evidence, we conclude that his contention lacks merit. The evidence, viewed in the light most favorable to the People, is legally sufficient to establish that defendant induced the victim to pose for the photographs (see generally People v Cabey, 85 NY2d 417, 420). The verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495). Defendant failed to preserve for our review his further contention that County Court’s charge was confusing with regard to the burden of proof on the affirmative defense raised by defendant (see People v Santos, 280 AD2d 561, 562, lv denied 96 NY2d 806), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). The sentence is not unduly harsh or severe. We have reviewed defendant’s remaining contentions and conclude that they are without merit. Present—Hayes, J.P., Wisner, Kehoe, Gorski and Lawton, JJ.