People v. King

• Decision Date: 09 December 2010
• Citation: 912 N.Y.S.2d 329,79 A.D.3d 1277
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard P. KING, Appellant.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 329
79 A.D.3d 1277

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

Supreme Court, Appellate Division, Third Department, New York.

Dec. 9, 2010.

912 N.Y.S.2d 331

Teresa C. Mulliken, Harpersfield, for appellant.

Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), for respondent.

Before: CARDONA, P.J., PETERS, SPAIN, KAVANAGH and EGAN JR., JJ.

KAVANAGH, J.

79 A.D.3d 1277

Appeal from a judgment of the County Court of Delaware County (Becker, J.), rendered July 27, 2009, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (two counts), sexual abuse in the second degree (two counts), forcible touching (two counts) and endangering the welfare of a child (two counts).

In July 2008, defendant and his roommate-a risk level III sex offender-accompanied the victim, who was 11 years old at the time, to a nearby park to go swimming. According to the victim, while they were at the park, defendant consumed some beer and gave him some cigars, and then forcibly touched him on his genitals. The victim ran home, told his mother, and defendant was subsequently arrested. An indictment was later filed charging defendant with sexual abuse in the first degree (two counts), sexual abuse in the second degree (two counts), forcible touching (two counts) and endangering the welfare of a child (two counts). After a jury trial, defendant was convicted as charged and sentenced to consecutive 6 1/2-year prison terms on his convictions for sexual abuse in the first degree and six

79 A.D.3d 1278

concurrent one-year terms on the remaining six crimes, plus five years of postrelease supervision.

Defendant maintains that not all of the crimes for which he stands convicted are based on legally sufficient evidence ¹

912 N.Y.S.2d 332

because he did not forcibly compel the victim to submit to any sexual contact and the evidence introduced at trial only confirmed that what contact he did have with the victim was incidental to a playful and consensual encounter not prompted by any desire for sexual gratification. Initially, we note that defendant failed to make a motion challenging the legal sufficiency of the evidence introduced at trial and, therefore, has not preserved this issue for appellate review ( see People v. Malcolm, 74 A.D.3d 1483, 1484 n., 902 N.Y.S.2d 264 [2010]; People v. Vargas, 72 A.D.3d 1114, 1116, 898 N.Y.S.2d 323 [2010], lv. denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010]; People v. Arce, 70 A.D.3d 1196, 1198, 894 N.Y.S.2d 599 [2010] ). Moreover, our review of the record leads us to conclude that the verdict convicting defendant of the crimes of sexual abuse in the first degree and second degree and forcible touching is not against the weight of the credible evidence introduced at trial ( see People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006]; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Defendant, as noted, claims that he did not use force in any contact he had with the victim while they were at the park. Sexual abuse in the first degree requires that it be proven that defendant subjected the victim to sexual contact by forcible compulsion ( see Penal Law § 130.65[1] ). ² Forcible compulsion, as it pertains to this prosecution, is defined as the "use of physical force" for the purpose of having sexual contact with the victim ( Penal Law § 130.00[8] ). In determining whether forcible compulsion was employed by defendant during his encounter with the victim, all of the surrounding circumstances regarding what transpired may be considered, including "the state of mind produced in the victim by the defendant's conduct, considering ... the age of the victim, the relative size and strength of the defendant and victim, and the nature" of their relationship ( People v. Maggio, 70 A.D.3d 1258, 1258-1259, 896 N.Y.S.2d 220 [2010], lv. denied 14 N.Y.3d 889, 903 N.Y.S.2d 778, 929 N.E.2d 1013 [2010] [internal quotation marks and citations omitted]; see People v. Scanlon, 52 A.D.3d 1035, 1038, 861 N.Y.S.2d 426 [2008...