Decided on April 25, 2013
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Acosta, Roman, Feinman, Clark, JJ.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered May 15, 2009, convicting defendant, after a jury trial, of endangering the welfare of an incompetent or physically disabled person, and sentencing him to a term of one year, unanimously affirmed.
Defendant did not preserve his claim that the People limited themselves to proving that penis-to-anus sexual conduct was the manner in which defendant endangered the victim's welfare, and we decline to review it in the interest of justice. Defendant's motion for a trial order of dismissal did not make this argument (see People v Gray, 86 NY2d 10, 19 ), and his motion to set aside the verdict had no preservation effect (see People v Padro, 75 NY2d 820 ).
As an alternative holding, we find that the People never limited their theory of the case to any particular type of endangerment (see People v Bess, 107 AD2d 844, 846 ; compare People v Barnes, 50 NY2d 375, 379 n 3 ). We similarly find that the verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). Even if the People had been required to prove penis-to-anus contact, the evidence warranted the conclusion that defendant engaged in that behavior.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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