Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Charles LoPresto, J.), rendered April 3, 2009.
Decided on February 10, 2011
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on February 10, 2011
PRESENT:STEINHARDT, J.P., PESCE and WESTON, JJ
The judgment convicted defendant, after a non-jury trial, of three counts of attempted endangering the welfare of a child and three counts of harassment in the second degree, and imposed sentence.
ORDERED that the judgment of conviction is modified, on the law and as a matter of discretion in the interest of justice, by (1) vacating the imposition of mandatory surcharges and crime victim assistance fees upon the convictions of harassment in the second degree (three counts), and (2) reducing the mandatory surcharges and crime victim assistance fees upon the convictions of attempted endangering the welfare of a child (three counts) from the total sum of $600 to the total sum of $480; as so modified, the judgment of conviction is affirmed.
Defendant was charged, insofar as is relevant to this appeal, with three counts of attempted endangering the welfare of a child and three counts of harassment in the second degree. At the non-jury trial, the sole witnesses were the three minor complainants, each of whom testified that defendant had inappropriately touched her during a single incident. These incidents allegedly took place in March, April and May 2008, respectively. The defense did not present any evidence. Following the trial, the Criminal Court found defendant guilty of attempted endangering the welfare of a child (three counts) and harassment in the second degree (three counts). The instant appeal by defendant ensued.
Defendant's claim that the harassment convictions with respect to the complainant from the March incident and the complainant from the April incident were not supported by legally sufficient evidence is unpreserved for appellate review, as no objections were made on this ground at trial (see CPL 470.05 ; People v Gray, 86 NY2d 10 ). With respect to the harassment charge involving the complainant from the May incident, while defendant made a motion to dismiss all charges involving this complainant, in part arguing that the complainant's testimony failed to demonstrate that she was annoyed or alarmed by defendant's actions, this claim is distinct from defendant's argument on appeal that the evidence failed to show his intent to harass, annoy or alarm this complainant. As such, defendant's contention regarding the legal sufficiency of the harassment claim involving the complainant from the May incident is likewise unpreserved (see People v Carncross, 14 NY3d 319, 325  [ where a motion to dismiss for insufficient evidence [is] made, the preservation requirement compels that the argument be 'specifically directed' at the alleged error"], quoting Gray, 86 NY2d at 19).
In any event, viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620 ), we find that it was legally sufficient to convict defendant of each count of harassment in the second degree (Penal Law § 240.26 ). Defendant's intent to harass, annoy or alarm each of the complainants could be inferred from his conduct (see People v Manzino, 16 Misc 3d 126[A], 2007 NY Slip Op 51215[U] [App Term, 9th & 10th Jud Dists 2007]) and the surrounding circumstances (see People v Urena, 199 AD2d 443 ; People v Collins, 178 AD2d 789 ). In light of the complainants' young ages of 12 and 13, and defendant's position of authority in each case, as a family friend, uncle or grandfather figure, the Criminal Court could reasonably infer that defendant acted with the intent to harass, annoy or alarm the complainants, when he sat beside them and touched their upper or inner thighs (see Penal Law § 240.26 ; see also People v Dereli, 2003 NY Slip Op 51360[U] [App Term, 1st Dept 2003]).
In conducting our independent weight of the evidence review (see CPL 470.15 ; People v Danielson, 9 NY3d 342, 348-349 ), we view the evidence in light of the elements of the crimes in this non-jury trial and accord great deference to the Criminal Court's opportunity to view the witnesses, hear their testimony, and observe their demeanor (People v Romero, 7 NY3d 633, 644-645 ; People v Mateo, 2 NY3d 383, 410 ; People v Bleakley, 69 NY2d 490, 495 ; People v Ramirez, 58 AD3d 757, 758 ). Defendant's argument that the complainants' testimony was implausible involves issues of credibility. Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see People v Lane, 7 NY3d 888, 890 ; Romero, 7 NY3d at 644-645; Bleakley, 69 NY2d at 495; People v Kearns, 56 AD3d 1047 ; People v Womack, 25 Misc 3d 141[A], 2009 NY Slip Op 52458[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; People v Williams, 24 Misc 3d 131[A], 2009 NY Slip Op 51358[U] [App Term, 9th & 10th Jud Dists 2009]).
Although the mandatory surcharges and fees were imposed at the sentencing proceeding, section 60.35 (1) of the Penal Law makes clear that these assessments are levied "in addition to," not "as a part of" a defendant's sentence (see People v Guerrero, 12 NY3d 45 ). The Court of Appeals has determined that an order of protection is similarly not part of a sentence and further held that preservation rules preclude the challenge of such an imposition on appeal. So too, here, defendant's claims regarding the amount of mandatory surcharges and fees imposed are unpreserved and do not fall within the narrow "illegal sentence" exception to the preservation rule (see People v Nieves, 2 NY3d 310 ; cf. People v Samms, 95 NY2d 52, 56 ). However, in the exercise of our interest of justice jurisdiction, we reach defendant's contentions and find that under Penal Law § 60.35, it was unlawful for the Criminal Court to impose multiple surcharges upon the convictions of attempted endangering the welfare of a child (three counts) and harassment in the second degree (three counts). As each conviction of endangering the welfare of a child and harassment arose from the commission of a single act, mandatory surcharges and crime victim assistance fees should have only been imposed upon each conviction of the higher level offense -- attempted endangering the welfare of a child (see Penal Law § 60.35 ; People v Tarantola, 187 AD2d 546 ). The Criminal Court also erred in imposing mandatory surcharges and crime victim ...