People v. Dunavin

• Decision Date: 16 May 1991
• Citation: 570 N.Y.S.2d 369,173 A.D.2d 1032
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard DUNAVIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 369

570 N.Y.S.2d 369

173 A.D.2d 1032

The PEOPLE of the State of New York, Respondent, v. Richard DUNAVIN, Appellant.

Supreme Court, Appellate Division Third Department.

May 16, 1991.

Charles J. Wilcox, Troy, for appellant.

Pattison, Sampson, Ginsberg & Griffin, P.C. (Paul D. Clayton, of counsel), Troy, for respondent.

Before WEISS, J.P., and YESAWICH, LEVINE, MERCURE and HARVEY, JJ.

MERCURE, Justice.

Appeal from a judgment of the County Court of Rensselaer County (Harris, J.), rendered June 7, 1990, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (three counts) and endangering the welfare of a child (two counts).

Defendant was indicted by a Grand Jury for several offenses arising out of incidents involving two seven-year-old girls, Angela and Michelle, and a 10-year-old girl, Christy. Following trial, defendant was convicted of three counts of sexual abuse in the first degree and two counts of endangering the welfare of a child. Defendant was sentenced to consecutive prison terms of 2 1/3 to 7 years on the sexual abuse convictions and one year on the remaining convictions. This appeal followed.

Initially, defendant's challenge to County Court's submission of sexual abuse in the first degree as a lesser included offense of sodomy in the first degree (see, People v. Ford, 76 N.Y.2d 868, 560 N.Y.S.2d 981, 561 N.E.2d 881) is not preserved for appellate review because defendant failed to take exception to the court's charge (see, CPL 300.50[1]; People v. Ford, 62 N.Y.2d 275, 476 N.Y.S.2d 783, 465 N.E.2d 322; People v. Gonzalez, 150 A.D.2d 603, 541 N.Y.S.2d 472). Moreover, under the circumstances of this case, we are not persuaded to reverse defendant's conviction in the exercise of our interest of justice jurisdiction.

We also reject defendant's contention that counts three and six of the indictment, charging endangering the welfare of a child, are duplicitous (see, CPL 200.30[1]. This crime may be committed either by one act or by multiple acts and may be readily classified as a continuing offense over a period of time (People v. Keindl, 68 N.Y.2d 410, 421, 509 N.Y.S.2d 790, 502 N.E.2d 577; see, People v. Conte, 159 A.D.2d 993, 994, 552 N.Y.S.2d 743, lv. denied 76 N.Y.2d 733, 558 N.Y.S.2d 894, 557 N.E.2d 1190; People v. Tolle, 144 A.D.2d 963, 964, 534 N.Y.S.2d 271, lv. denied 73 N.Y.2d 927, 539 N.Y.S.2d 311, 536 N.E.2d 640). Because "a defendant may be guilty of this crime by virtue of a series of acts" (People v. Keindl, supra ), the counts charging a violation of Penal Law § 260.10(1) are not defective as a matter of law.

Defendant next argues that the convictions were not supported by legally sufficient evidence and that the trier of fact has failed to give the evidence the weight it should be accorded. We disagree. Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5]; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Minor inconsistencies in the testimony of witnesses present questions of credibility to be determined by the trier of fact (see, People v. Di Girolamo, 108 A.D.2d 755, 485 N.Y.S.2d 98, lv. denied 64 N.Y.2d 1133, 490 N.Y.S.2d 1028, 479 N.E.2d 831) and its determination should not be disturbed on appeal unless it is clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).

In our view, County Court properly examined Angela and concluded that the child understood the nature of an oath. Moreover, by failing to object at trial, defendant waived the issue of whether additional evidence was required to corroborate her testimony (see, People v. Josey, 131 A.D.2d 699, 517 N.Y.S.2d 33, lv. denied 70 N.Y.2d 800, 522 N.Y.S.2d 118, 516 N.E.2d 1231). Accordingly, Angela's testimony was sufficient to establish every element of sexual abuse in the first degree under count two of the indictment. Christy's testimony provided the requisite proof under counts four and five and corroborated Angela's testimony under count two (see, Penal Law §...