People v. Foss

Appellate Division of the Supreme Court of New York

People v. Foss

48 A.D.3d 1219, 852 N.Y.S.2d 534

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 8, 2008

StatusPublished

Cited by1 cases

This text of 48 A.D.3d 1219 (People v. Foss) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Foss, 48 A.D.3d 1219, 852 N.Y.S.2d 534 (N.Y. Ct. App. 2008).

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Opinion

Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered June 29, 2006. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree (two counts).

It is hereby ordered that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with respect to each other and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]). We reject defendant’s contention that the evidence is legally insufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although the victims testified that they were not certain when the incidents underlying the charges occurred, a police investigator testified that she spoke with the victims and their mother in December 2001 after receiving a telephone call from a probation officer who expressed “concerns” about defendant. We thus conclude that there is a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury,” i.e., that the crimes were committed in 2001, at which time the victims were less than 11 years old (id.; see People v Adams, 43 AD3d 1423, 1424 [2007], lv denied 9 NY3d 1004 [2007]).

We agree with defendant, however, that the imposition of consecutive sentences with respect to each count renders the sentence unduly harsh and severe, and we therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with respect [1220]*1220to each other (see CPL 470.15 [6] [b]; see generally People v Bailey, 17 AD3d 1022, 1023 [2005], lv denied 5 NY3d 803 [2005]). Present—Scudder, P.J., Centra, Fahey, Green and Pine, JJ.

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Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered June 29, 2006. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree (two counts).

It is hereby ordered that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with respect to each other and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]). We reject defendant’s contention that the evidence is legally insufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although the victims testified that they were not certain when the incidents underlying the charges occurred, a police investigator testified that she spoke with the victims and their mother in December 2001 after receiving a telephone call from a probation officer who expressed “concerns” about defendant. We thus conclude that there is a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury,” i.e., that the crimes were committed in 2001, at which time the victims were less than 11 years old (id.; see People v Adams, 43 AD3d 1423, 1424 [2007], lv denied 9 NY3d 1004 [2007]).

We agree with defendant, however, that the imposition of consecutive sentences with respect to each count renders the sentence unduly harsh and severe, and we therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with respect [1220]*1220to each other (see CPL 470.15 [6] [b]; see generally People v Bailey, 17 AD3d 1022, 1023 [2005], lv denied 5 NY3d 803 [2005]). Present—Scudder, P.J., Centra, Fahey, Green and Pine, JJ.

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Bluebook (online)

48 A.D.3d 1219, 852 N.Y.S.2d 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-foss-nyappdiv-2008.

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