People v. Gersten

• Decision Date: 05 February 2001
• Docket Number: No. 1591,1591
• Citation: 280 A.D.2d 487,719 N.Y.S.2d 900
• Parties: (A.D. 2 Dept. 2001) The People, etc., respondent, v. Ben Gersten, appellant. (Ind./99) 2000-00542 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 900

719 N.Y.S.2d 900 (A.D. 2 Dept. 2001)

The People, etc., respondent, v. Ben Gersten, appellant.

(Ind. No. 1591/99)

2000-00542

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

February 5, 2001.

Laurie S. Hershey, Garden City, N.Y. (Samuel E. Rieff and Kevin J. Keating of counsel), for appellant.

Denis Dillon, District Attorney, Mineola, N.Y. (Tammy Smiley and Daniel T. Butler of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Nassau County (Belfi, J.), rendered January 5, 2000, convicting him of sodomy in the first degree (six counts), sexual abuse in the first degree (two counts), and endangering the welfare of a child, after a nonjury trial, and sentencing him to consecutive indeterminate terms of 12 1/2 to 25 years imprisonment on the first 3 counts of sodomy in the first degree, concurrent indeterminate terms of 12 1/2 to 25 years imprisonment on the remaining 3 counts of sodomy in the first degree, and concurrent determinate terms of 7 years imprisonment for sexual abuse in the first degree (two counts) and one year imprisonment for endangering the welfare of a child.

ORDERED that the judgment is modified, on the law, by reducing the term of imprisonment imposed on each conviction of sodomy in the first degree from 12 1/2 to 25 years imprisonment to 8 1/3 to 25 years imprisonment; as so modified, the judgment is affirmed.

The defendant's contentions concerning the admission of evidence of uncharged crimes and expert testimony on child sexual abuse accommodation syndrome are unpreserved for appellate review. These arguments were not raised in the trial court (see, People v. James, 262 A.D.2d 500; People v. Wilson, 225 A.D.2d 642; People v. Perez, 194 A.D.2d 812), and we decline to review them in the exercise our interest of justice jurisdiction.

Insofar as the defendant's contention of ineffective assistance of counsel can be reviewed on this record, we are satisfied that, under the totality of the circumstances existing at the time of representation, the defendant received meaningful representation (see, People v. Rivera, 71 N.Y.2d 705, 708; People v. Satterfield, 66 N.Y.2d 796, 798-799; People v. Baldi, 54 N.Y.2d 137, 146-147).

Contrary to the defendant's contention, the trial court legally imposed consecutive sentences for his convictions of sodomy in the first degree under counts one, two, and three of the indictment, as each count...