People v. Cardona

136 A.D.2d 556, 523 N.Y.S.2d 552, 1988 N.Y. App. Div. LEXIS 335

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 1988
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Quinones, J.), rendered October 15, 1986, convicting him of sexual abuse in the first degree (three counts), sexual abuse in the third degree (three counts) and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5).

The defendant’s principal contention is that the prosecution failed to prove that the victim was “physically helpless” within the meaning of Penal Law § 130.00 (7) and § 130.65. However, the defendant did not make any reference to such an argument at the time that he made his motion to dismiss the indictment at the close of the People’s case. The defendant’s present contention, which is thus being asserted for the first time in this court, has therefore not been properly preserved for review as a matter of law (see, People v Gomez, 67 NY2d 843, 844-845; People v Dekle, 56 NY2d 835, 837; People v Stahl, 53 NY2d 1048, 1050; People v Patel, 132 AD2d 498) and we decline to review it in the exercise of our interest of justice jurisdiction.

We further find that the sentence imposed was not unduly harsh or excessive. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur.