        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

775
KA 08-01881
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CARLOS SANTIAGO, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Thomas R.
Morse, A.J.), rendered June 30, 2008. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
(two counts) and unlawful imprisonment in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law and as a matter of discretion in the
interest of justice by reversing that part convicting defendant of
sexual abuse in the first degree under the fourth count of the
indictment and dismissing that count of the indictment, and as
modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, two counts of sexual abuse in the
first degree (Penal Law § 130.65 [1]). Viewing the evidence in light
of the elements of the crimes as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s contention that the
verdict is against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). Although “an acquittal would not have
been unreasonable” (Danielson, 9 NY3d at 348), “[w]here, as here,
witness credibility is of paramount importance to the determination of
guilt or innocence, [we] must give ‘[g]reat deference . . . [to the
jury’s] opportunity to view the witnesses, hear the testimony and
observe demeanor’ ” (People v Harris, 15 AD3d 966, 967, lv denied 4
NY3d 831, quoting Bleakley, 69 NY2d at 495). Contrary to defendant’s
further contention, the testimony of the prosecution witnesses was not
incredible as a matter of law, that is, it was not “ ‘impossible of
belief because it [was] manifestly untrue, physically impossible,
contrary to experience, or self-contradictory’ ” (People v Garafolo,
44 AD2d 86, 88; see People v Rumph, 93 AD3d 1346, 1347; People v
Wallace, 306 AD2d 802, 802-803).
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                                                         KA 08-01881

     We reject defendant’s contention that County Court erred in
refusing to suppress the in-court identification by the victim on the
ground that it was based on an unduly suggestive photo array
identification procedure. Contrary to the People’s contention,
defendant preserved that contention for our review inasmuch as the
suppression court “specifically confronted and resolved [the] issue”
(People v Feingold, 7 NY3d 288, 290). We conclude, however, that the
People met their initial burden of establishing the reasonableness of
the police conduct with respect to the photo array, and defendant
failed to meet his ultimate burden of proving that the identification
procedure was unduly suggestive (see generally People v Chipp, 75 NY2d
327, 335, cert denied 498 US 833).

      Defendant failed to preserve for our review his further
contention that the indictment is multiplicitous (see CPL 470.05 [2]).
We nevertheless exercise our power to review that contention as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). As the People correctly concede, the fourth count of the
indictment, charging sexual abuse in the first degree, must be
dismissed because where, as here, “the evidence . . . shows a single,
uninterrupted attack in which the attacker gropes several parts of a
victim’s body, the attacker may be charged with only one count of
sexual abuse” (People v Alonzo, 16 NY3d 267, 268). We therefore
modify the judgment accordingly.

     Defendant contends that the court erred in sentencing him as a
second felony offender. At sentencing, defendant challenged the prior
conviction from Pennsylvania solely upon the ground that he would have
been eligible to be adjudicated a youthful offender upon the
conviction if it had occurred in New York but that such relief was not
available in Pennsylvania. On appeal, however, he contends that the
Pennsylvania conviction would not constitute a conviction in New York
because he was 15 years old at the time of conviction, and a 15-year-
old could not be convicted in New York of manslaughter in the second
degree, one of the offenses encompassed by the Pennsylvania conviction
of murder in the third degree (see 18 Pa Cons Stat Ann § 2502 [c]).

     The Court of Appeals has stated that, in order “[t]o determine
whether a foreign crime is equivalent to a New York felony[,] the
court must examine the elements of the foreign statute and compare
them to an analogous Penal Law felony, for ‘[i]t is the statute upon
which the indictment was drawn that necessarily defines and measures
the crime’ ” (People v Gonzalez, 61 NY2d 586, 589, quoting People v
Olah, 300 NY 96, 98). The Court added, however, that, “[a]s an
exception to the . . . rule [set forth in People v Olah, it has]
permitted a sentencing court to go beyond the statute and scrutinize
the accusatory instrument in the foreign jurisdiction where the
statute renders criminal not one act but several acts which, if
committed in New York, would in some cases be felonies” and in others
would not constitute felonies (id. at 590). Preservation is required
when the defendant’s contention requires that the sentencing court
determine “whether a particular out-of-State conviction is the
equivalent of a New York felony[, which] may involve production and
examination of foreign accusatory instruments and, conceivably, the
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                                                        KA 08-01881

resolution of evidentiary disputes, all in the context of comparisons
with the law of other jurisdictions” (People v Samms, 95 NY2d 52, 57).
That is the case here, inasmuch as defendant contends that the
Pennsylvania conviction encompasses several crimes, some of which he
could not be convicted upon in New York. Inasmuch as defendant failed
to contend before the sentencing court that the Pennsylvania
conviction would not constitute a conviction in New York based on his
age at the time of the crimes, he failed to preserve his contention
for our review (see id.), and we decline to exercise our power to
review it as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
