People v. Billinger

204 A.D.2d 562, 612 N.Y.S.2d 174

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 1994
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered December 5, 1991, convicting him of attempted sodomy in the first degree, sexual abuse in the first degree, reckless endangerment in the first degree and endangering the welfare of a minor, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

The court properly exercised its discretion in providing that the term of imprisonment for the conviction of reckless endangerment in the first degree run consecutively to the concurrent terms of imprisonment imposed upon the convictions of attempted sodomy in the first degree and sexual abuse in the first degree. Although each of these crimes took place over a continuous course of activity, the reckless endangerment constituted a separate and distinct act, and was not a material element of attempted sodomy or sexual abuse (see, Penal Law § 70.25 [2]; People v Sceravino, 193 AD2d 824; People v Whiting, 182 AD2d 732). Moreover, we note that the sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80).

We have reviewed the defendant’s remaining contentions, including those set forth in his supplemental pro se brief, and find them to be without merit. Bracken, J. P., Sullivan, O’Brien and Joy, JJ., concur.