People v. Prue

Appellate Division of the Supreme Court of New York

People v. Prue

238 A.D.2d 944, 661 N.Y.S.2d 545, 1997 N.Y. App. Div. LEXIS 4784

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

DecidedApril 25, 1997

StatusPublished

Cited by2 cases

This text of 238 A.D.2d 944 (People v. Prue) 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. Prue, 238 A.D.2d 944, 661 N.Y.S.2d 545, 1997 N.Y. App. Div. LEXIS 4784 (N.Y. Ct. App. 1997).

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Opinion

—Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant was convicted following a bench trial of endangering the welfare of a child (Penal Law § 260.10 [1]). We reject the contention of defendant that Penal Law § 260.10 (1) is unconstitutionally vague as applied to him (see, People v Bergerson, 17 NY2d 398, 403-404; People v Padmore, 221 AD2d 663, 664, Iv denied 87 NY2d 1023; see also, People v Bright, 71 NY2d 376).

Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we conclude that it is legally sufficient to establish defendant’s guilt beyond a reasonable doubt. There is sufficient evidence from which the trier of fact could find that defendant "knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare” of the 12-year-old complainant (Penal Law § 260.10 [1]; see, People v Padmore, supra, at 664). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495).

There is no merit to the contention of defendant that the photographic exhibits were admitted into evidence without proper foundation (see, People v Corbett, 68 AD2d 772, 779-780, affd 52 NY2d 714). Nor is there merit to his contention that the People violated their obligation under People v Rosario (9 [945]*945NY2d 286, rearg denied 9 NY2d 908, 14 NY2d 876, 15 NY2d 765, cert denied 368 US 866) or Brady v Maryland (373 US 83; see, People v Turner, 233 AD2d 932).

Supreme Court properly denied defendant’s motion to set aside the verdict as inconsistent or repugnant (see, People v Loughlin, 76 NY2d 804, 806-807; People v Tucker, 55 NY2d 1, 6-7, rearg denied 55 NY2d 1039).

Considering all the circumstances in this case, we conclude that the imposition of a 30-day term of incarceration, as a condition of probation, is inappropriate. Therefore, we exercise our power to modify the sentence as a matter of discretion in the interest of justice by vacating the 30-day term of incarceration (see, CPL 470.15 [6] [b]) and otherwise affirm. (Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J.— Endangering Welfare Child.) Present—Denman, P. J., Pine, Callahan, Boehm and Fallon, JJ.

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—Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant was convicted following a bench trial of endangering the welfare of a child (Penal Law § 260.10 [1]). We reject the contention of defendant that Penal Law § 260.10 (1) is unconstitutionally vague as applied to him (see, People v Bergerson, 17 NY2d 398, 403-404; People v Padmore, 221 AD2d 663, 664, Iv denied 87 NY2d 1023; see also, People v Bright, 71 NY2d 376).

Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we conclude that it is legally sufficient to establish defendant’s guilt beyond a reasonable doubt. There is sufficient evidence from which the trier of fact could find that defendant "knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare” of the 12-year-old complainant (Penal Law § 260.10 [1]; see, People v Padmore, supra, at 664). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495).

There is no merit to the contention of defendant that the photographic exhibits were admitted into evidence without proper foundation (see, People v Corbett, 68 AD2d 772, 779-780, affd 52 NY2d 714). Nor is there merit to his contention that the People violated their obligation under People v Rosario (9 [945]*945NY2d 286, rearg denied 9 NY2d 908, 14 NY2d 876, 15 NY2d 765, cert denied 368 US 866) or Brady v Maryland (373 US 83; see, People v Turner, 233 AD2d 932).

Supreme Court properly denied defendant’s motion to set aside the verdict as inconsistent or repugnant (see, People v Loughlin, 76 NY2d 804, 806-807; People v Tucker, 55 NY2d 1, 6-7, rearg denied 55 NY2d 1039).

Considering all the circumstances in this case, we conclude that the imposition of a 30-day term of incarceration, as a condition of probation, is inappropriate. Therefore, we exercise our power to modify the sentence as a matter of discretion in the interest of justice by vacating the 30-day term of incarceration (see, CPL 470.15 [6] [b]) and otherwise affirm. (Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J.— Endangering Welfare Child.) Present—Denman, P. J., Pine, Callahan, Boehm and Fallon, JJ.

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Bluebook (online)

238 A.D.2d 944, 661 N.Y.S.2d 545, 1997 N.Y. App. Div. LEXIS 4784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-prue-nyappdiv-1997.

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