People v. Rich
| Decision Date | 30 November 2010 |
| Citation | 78 A.D.3d 1200,912 N.Y.S.2d 124 |
| Parties | The PEOPLE, etc., respondent, v. Michael RICH, appellant. |
| Court | New York Supreme Court — Appellate Division |
78 A.D.3d 1200
The PEOPLE, etc., respondent,
v.
Michael RICH, appellant.
Supreme Court, Appellate Division, Second Department, New York.
Nov. 30, 2010.
Scaring & Brissenden, PLLC, Garden City, N.Y. (Stephen P. Scaring and Matthew W. Brissenden of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and LEONARD B. AUSTIN, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered November 28, 2008, convicting him of 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 County Court, Suffolk County, for further proceedings pursuant to CPL 460.50(5).
The defendant allegedly subjected his grandniece to certain sexual contacts during an incident on a family vacation at his summer house in Southampton, New York. The then-12-year old victim testified that, after asking her if she wanted "a tickle," the defendant placed his hand underneath her shirt and onto her breast, that he put his hand under her skirt and "cupped" it over her vagina, and that he placed his hand onto her buttocks. She also testified that he then asked her if she wanted to give him a "special tickle," grabbed her hand, and placed it into his shorts.
The defendant was charged with two counts of sexual abuse in the first degree, one count of attempted sexual abuse in the first degree, two counts of sexual abuse in the second degree, and one count of endangering the welfare of a child. The first count and the fourth count related to the alleged touching of the victim's vagina, the second count and the fifth count related to the alleged touching of the victim's buttocks, and the third count related to the alleged attempt to force the victim to touch his penis. The sixth count, endangering the welfare of a child, was predicated on a "sexual contact" theory, but did not specify any particular act. Following a jury trial, the defendant was acquitted on counts one through five of the indictment, but was found guilty of endangering the welfare of a child. We affirm.
The defendant's argument that the verdict was repugnant is unpreserved for appellate review because he failed to raise the issue prior to the discharge of the jury ( see People v. Satloff, 56 N.Y.2d 745, 452 N.Y.S.2d 12, 437 N.E.2d 271; People v. Lobban, 59 A.D.3d 566, 872 N.Y.S.2d 557). In any event, this argument is without merit ( see e.g. People v. Sanchez, 128 A.D.2d 377, 379, 512 N.Y.S.2d 389). The jury's findings can be reconciled and are not "inherently self-contradictory" ( People v. Tucker, 55 N.Y.2d 1, 8, 447 N.Y.S.2d 132, 431 N.E.2d 617; see People v. Loughlin, 76 N.Y.2d 804, 559 N.Y.S.2d 962, 559 N.E.2d 656). Each of the first five counts, as charged by the County Court, was based on a specific sexual act and contained an element different from that of the sixth count. As...
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