People v. Newman

• Decision Date: 30 September 2011
• Citation: 929 N.Y.S.2d 827,2011 N.Y. Slip Op. 06745,87 A.D.3d 1348
• Parties: The PEOPLE of the State of New York, Respondent,v.Rodney M. NEWMAN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 1348
929 N.Y.S.2d 827
2011 N.Y. Slip Op. 06745

The PEOPLE of the State of New York, Respondent,
v.
Rodney M. NEWMAN, Defendant–Appellant.

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

Sept. 30, 2011.

[929 N.Y.S.2d 828]

Lipsitz Green Scime Cambria LLP, Buffalo (Michael S. Deal of Counsel), for Defendant–Appellant.Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.PRESENT: SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ.MEMORANDUM:

[87 A.D.3d 1349] Defendant appeals from a judgment convicting him upon a jury verdict of promoting a sexual performance by a child (Penal Law § 263.15), forcible touching (§ 130.52), and two counts each of unlawful surveillance in the second degree (§ 250.45[2] ) and endangering the welfare of a child (§ 260.10[1] ). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction because he failed to renew his motion for a trial order of dismissal after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, that contention is without merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

With respect to the conviction of promoting a sexual performance by a child, the People established that defendant knew “the character and content” of the performance despite his absence during the recording of the sexual act (

[929 N.Y.S.2d 829]

Penal Law § 263.15). With respect to the conviction of two counts of unlawful surveillance in the second degree, both applicable to the first victim, the People established that defendant made the recordings for his own “sexual arousal or sexual gratification” (§ 250.45[2] ). That element of the crime could be inferred from defendant's conduct in placing surveillance cameras in the first victim's bathroom and bedroom ( see generally People v. Willis, 79 A.D.3d 1739, 1740, 917 N.Y.S.2d 788, lv. denied 16 N.Y.3d 864, 923 N.Y.S.2d 426, 947 N.E.2d 1205). With respect to the conviction of forcible touching and the second count of endangering the welfare of a child, applicable to the second victim, we reject defendant's contention that the second victim's testimony was incredible as a matter of law. It cannot be said that his testimony was “manifestly untrue, physically impossible, contrary to experience, or self-contradictory” ( People v. Harris, 56...