People v. Cardona
| Decision Date | 11 January 1988 |
| Citation | 136 A.D.2d 556,523 N.Y.S.2d 552 |
| Parties | The PEOPLE, etc., Respondent, v. Victor CARDONA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Paula Sharp, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Leonard Joblove and Robin Bernstein, of counsel), for respondent.
Before BRACKEN, J.P., and KUNZEMAN, SPATT and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Quinones, J.), rendered October 15, 1986, convicting him of sexual abuse in the first degree (three counts), sexual abuse in the third degree (three counts) and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50(5).
The defendant's principal contention is that the prosecution failed to prove that the victim was "physically helpless" within the meaning of Penal Law § 130.00(7) and § 130.65. However, the defendant did not make any reference to such an argument at the time that he made his motion to dismiss the indictment at the close of the People's case. The defendant's present contention, which is thus being asserted for the first time in this court, has therefore not been properly preserved for review as a matter of law ( see, People v. Gomez, 67 N.Y.2d 843, 844-845, 501 N.Y.S.2d 650, 492 N.E.2d 778; People v. Dekle, 56 N.Y.2d 835, 837, 452 N.Y.S.2d 568, 438 N.E.2d 101; People v. Stahl, 53 N.Y.2d 1048, 1050, 442 N.Y.S.2d 488, 425 N.E.2d 876; People v. Patel, 132 A.D.2d 498, 518 N.Y.S.2d 384) and we decline to review it in the exercise of our interest of justice jurisdiction.
We further find that the sentence imposed was not unduly harsh or excessive.
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