CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND
from a judgment of the Seneca County Court (Dennis F. Bender,
J.), rendered January 12, 2015. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first
degree (two counts) and endangering the welfare of a child
hereby ORDERED that the judgment so appealed from is
Defendant appeals from a judgment convicting him following a
jury trial of two counts of sexual abuse in the first degree
(Penal Law § 130.65 ) and two counts of endangering
the welfare of a child (§ 260.10 ). Contrary to
defendant's contention, County Court did not abuse its
discretion in permitting a child witness to testify even
though her name had not been included on the witness list.
Inasmuch as a witness list is required only in situations
involving alibi witnesses and witnesses called to rebut an
alibi (see CPL 250.20), and it is indisputable that
the child witness was neither an alibi witness nor a witness
called to rebut an alibi, we conclude that the court did not
abuse its discretion in permitting the child witness to
testify (see People v Stacchini, 108 A.D.3d 866,
867). To the extent that defendant claims he needed more time
to prepare to cross-examine the child witness, that issue is
unpreserved for our review because defendant never requested
an adjournment or continuance (see People v Jornov,
65 A.D.3d 363, 370; see also People v Ressler, 302
A.D.2d 921, 921; see generally CPL 470.05 ).
further contends that the court erred in permitting that
child witness to testify concerning prior bad acts or
uncharged crimes without first holding a Ventimiglia
hearing, and that he was thereby denied a fair trial.
Inasmuch as defendant raised that contention for the first
time in a posttrial CPL 330.30 motion, it is not preserved
for our review (see generally People v Padro, 75
N.Y.2d 820, 821, rearg denied 75 N.Y.2d 1005,
rearg dismissed 81 N.Y.2d 989), and we decline to
exercise our power to review it as a matter of discretion in
the interest of justice (see CPL 470.15  [a]).
contends that the court erred in permitting the prosecutor to
use leading questions when examining various child witnesses.
With the exception of one question, that contention is not
preserved for our review (see People v Boyd, 50
A.D.3d 1578, 1578, lv denied 11 N.Y.3d 785) and, in
any event, the contention lacks merit. It is well settled
that " [l]eading questions may be permitted of a child
victim in a sexual abuse case so the child's testimony
can be clarified or expedited if the child is apparently
unwilling to testify freely' " (id.).
Moreover, " whether to permit the use of leading
questions on direct examination is a matter within the sound
discretion of the trial court and [the court's ruling on
that issue] will not be disturbed absent a clear
demonstration of an abuse of discretion' "
(People v Martina, 48 A.D.3d 1271, 1272, lv
denied 10 N.Y.3d 961; see People v Cuttler, 270
A.D.2d 654, 655, lv denied 95 N.Y.2d 795). Here,
"particularly in view of the intimate and embarrassing
nature of the crime[s], " we conclude that the court did
not abuse its discretion (People v Cordero, 110
A.D.3d 1468, 1470, lv denied 22 N.Y.3d 1137');">22 N.Y.3d 1137
[internal quotation marks omitted]; see Martina, 48
A.D.3d at 1272).
agree with the People that defendant's challenges to the
legal sufficiency of the evidence, to the extent that they
are preserved, lack merit. Addressing first defendant's
contention that the evidence is legally insufficient with
respect to the dates of the alleged crimes, we conclude that
defendant failed to preserve that contention for our review
inasmuch as he failed to make a motion to dismiss that was
"specifically directed" at that alleged error
(People v Gray, 86 N.Y.2d 10, 19). In any event,
that contention lacks merit (see People v Erle, 83
A.D.3d 1442, 1444, lv denied 17 N.Y.3d 794).
reviewed defendant's remaining challenges to the legal
sufficiency of the evidence and conclude that they lack merit
(see generally People v Bleakley, 69 N.Y.2d 490,
495). The evidence, viewed in the light most favorable to the
People (see People v Contes, 60 N.Y.2d 620, 621),
establishes that defendant subjected both child victims to
sexual contact as that term is defined in Penal Law §
130.00 (3) (see People v Hoffert, 125 A.D.3d 1386,
1387-1388, lv denied25 N.Y.3d 990; see also
Matter of Daniel R. [Lucille R.], 70 A.D.3d 839, 841).
Moreover, "[i]t is well settled that, [b]ecause the
question... whether a person was seeking sexual gratification
is generally a subjective inquiry, it can be inferred from
the conduct of the perpetrator' " (Hoffert,
125 A.D.3d at 1388; see People v Chrisley, 126
A.D.3d 1495, 1496, lv denied26 N.Y.3d 1007;
People v Anthony D., 259 A.D.2d 1011, 1011, lv
denied93 N.Y.2d 1001). The inference that defendant was
seeking sexual gratification is " clearly
appropriate' " where, as here, a nonrelative touches
the intimate parts of a child (People v Watson, 281
A.D.2d 691, 698, lv denied96 N.Y.2d 925;
see § 130.00 ; People v Fuller, 50
A.D.3d 1171, 1175, lv denied11 N.Y.3d 788).
Inasmuch as the evidence is legally sufficient to support the
conviction of sexual abuse in the first degree, "it
necessarily also [is] legally sufficient with respect to the