                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   105464
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

WILLIAM A. LANCASTER,
                    Appellant.
________________________________


Calendar Date:   September 4, 2014

Before:   Peters, P.J., Stein, Garry, Lynch and Devine, JJ.

                             __________


     Rebecca L. Fox, Plattsburgh, for appellant.

      Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A.
Douthat of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the Supreme Court (Lawliss, J.),
rendered September 17, 2012 in Clinton County, upon a verdict
convicting defendant of the crimes of criminal sexual act in the
first degree, attempted criminal sexual act in the first degree
and endangering the welfare of a child (two counts).

      Defendant, who was then 53 years old, was charged in a
17-count indictment arising out of allegations that he forced his
13-year-old victim to engage in sexual contact and sexual
intercourse on multiple occasions during a period beginning
sometime in July or August 2011 and continuing through November
10, 2011. As relevant to the issues presented, five counts
involved sexual activity occurring on November 10, 2011.
Defendant was arrested after a police detective arranged a
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recorded telephone call between the victim and defendant, who was
well-known by both the victim and her mother. During the call,
defendant acknowledged that there had been sexual activity
between them. After a jury trial, defendant was sentenced to
concurrent prison terms of 18 years with 10 years of postrelease
supervision on his conviction of criminal sexual act in the first
degree, 15 years with 10 years of postrelease supervision on his
conviction of attempted criminal sexual act in the first degree,
and one year each on his two convictions of endangering the
welfare of the child.

      On this appeal, defendant claims that the People failed to
present legally sufficient proof of criminal sexual act in the
first degree or attempted criminal sexual act in the first degree
and that the guilty verdicts therefor were against the weight of
the evidence. Although he concedes that his claim of legal
insufficiency was not preserved for this Court's review (see
People v Hawkins, 11 NY3d 484, 491-492 [2008]), "our review of
the weight of the evidence necessarily includes our verification
that the elements of the crime were established" (People v Wingo,
103 AD3d 1036, 1036, lv denied 21 NY3d 1021 [2013]). As relevant
here, a defendant is guilty of criminal sexual act in the first
degree "when he or she engages in oral sexual conduct or anal
sexual conduct with another person . . . [b]y forcible
compulsion" (Penal Law § 130.50 [1]). A defendant is guilty of
attempted criminal sexual act in the first degree when he or she
intentionally engages in conduct which "tends to effect" such
criminal sexual act (Penal Law § 110.00). Defendant claims that
because the jury acquitted him of the count of sexual abuse in
the first degree alleging oral sexual conduct by forcible
compulsion and rape in the first degree alleging sexual
intercourse by forcible compulsion for the event occurring on
November 10, 2011, the weight of the evidence fails to support
the jury's findings that defendant engaged in anal sexual conduct
by forcible compulsion and attempted to engage in oral sexual
conduct by forcible compulsion. We disagree.

      The element of "forcible compulsion" is necessary and
common to both the crimes of rape in the first degree and
criminal sexual act in the first degree (see Penal Law §§ 130.35
[1]; 130.50 [1]). Accordingly, defendant was charged with
                              -3-                105464

"compel[ling] [the acts] by either . . . use of physical force;
or . . . a threat, express or implied, which places a person in
fear of . . . physical injury to . . . herself or another person"
(Penal Law § 130.00 [8] [a], [b]; see People v Nailor, 268 AD2d
695, 697 [2000]). "The element of forcible compulsion is
examined through the state of mind produced in the victim, and
relevant factors include the age of the victim, the relative size
and strength of the defendant and victim, and the nature of the
defendant's relationship to the victim" (People v Scanlon, 52
AD3d 1035, 1038-1039 [2008] [internal quotation marks, brackets
and citations omitted], lv denied 11 NY3d 741 [2008]).

      In performing a weight of the evidence review, our
obligation is to review the evidence "in a neutral light, with
deference to the jury's credibility assessments, and, if based on
all the credible evidence a different finding would not have been
unreasonable, we must, like the trier of fact below, weigh the
relative probative force of conflicting testimony and the
relative strength of conflicting inferences that may be drawn
from the testimony" (People v Henehan, 111 AD3d 1151, 1153 [2013]
[internal quotation marks, brackets and citations omitted]).
Upon review of the evidence in this case, we find that, although
a different finding would not have been unreasonable, there was
ample support for the jury's verdict. The victim testified with
regard to her family's relationship with the older and physically
larger defendant. She was able to describe the event involving
anal sexual contact and oral sexual contact with great detail and
to explain that defendant held her legs, used his body weight to
restrain her and prevent her from moving, and that he proceeded
despite her cries of protest. In our view, the victim's
testimony establishes the element of forcible compulsion (see
People v Wright, 88 AD3d 1154, 1157 [2011], lv denied 18 NY3d 863
[2011]; People v Val, 38 AD3d 928, 929 [2007], lv denied 9 NY3d
852 [2007]; People v Plaisted, 2 AD3d 906, 907 [2003], lv denied
2 NY3d 744 [2004]). This is particularly so given the ages of
defendant and the victim, the victim's expressed fear from prior
incidents and the effect of defendant's "fatherly status in the
household" (People v Nailor, 268 AD2d at 698).

      We also reject defendant's claim that the audiotape of his
conversation with the victim should not have been allowed into
                              -4-                105464

evidence. "Admissibility of tape-recorded conversation requires
proof of the accuracy or authenticity of the tape by clear and
convincing evidence establishing that the offered evidence is
genuine and that there has been no tampering with it" (People v
Ely, 68 NY2d 520, 527 [1986] [internal quotation marks and
citation omitted]). "The foundational requirements for admission
of a recorded conversation include proof of both the authenticity
of the tape and the identity of the speakers on the tape" (People
v Vanhoesen, 31 AD3d 805, 807 [2006] [citations omitted]).
Proper foundation may be provided through, as relevant here,
testimony by "a witness to the conversation or to its recording"
(People v Ely, 68 NY2d at 527). Further, "a speaker's identity
may be proven through circumstances surrounding the recorded
conversation, which must include sufficient indica of
reliability" (People v Vanhoesen, 31 AD3d at 808), "such as the
substance of the conversation confirming the identity of the
party" (People v Shapiro, 227 AD2d 506, 507 [1996], lv denied 88
NY2d 1024 [1996]). Here, Detective Steven Dube testified that he
supervised and recorded the controlled telephone call and
identified both defendant's and the victim's voices on the
recording. He further testified that he listened to the
audiotape prior to his testimony and that it was not different
from the conversation he recorded on November 14, 2011. Under
these circumstances, Supreme Court acted within its discretion
when it admitted the audiotape into evidence.

      We are unpersuaded that defendant's sentence was harsh or
excessive. Where, as here, the sentence falls within the
permissible statutory range, "we will not disturb it unless we
find that the sentencing court abused its discretion or
extraordinary circumstances exist warranting a modification"
(People v Cruz, 53 AD3d 986, 986 [2008]). Given the nature of
defendant's crimes and that the aggregate sentence is less than
the maximum allowable, we discern nothing from the record that
indicates that the court abused its discretion nor are there any
extraordinary circumstances warranting a modification of the
sentence imposed (see People v Davis, 114 AD3d 1003, 1004 [2014],
lv denied 23 NY3d 962 [2014]; People v Bjork, 105 AD3d 1258, 1264
[2010], lv denied 21 NY3d 1040 [2013]; People v Maggio, 70 AD3d
1258, 1261 [2010], lv denied 14 NY3d 889 [2010]).
                              -5-                  105464

      At sentencing, Supreme Court also issued an order of
protection for the victim's benefit. Our review of the record
confirms that Supreme Court did not err when it calculated the
duration of the order to be 28 years from the date of sentencing.
Where, as here, a defendant is convicted of a felony, the
duration of an order of protection "shall not exceed the greater
of: (i) eight years from the date of such sentencing, or (ii)
eight years from the date of the expiration of the maximum term
of an indeterminate or the term of a determinate sentence of
imprisonment actually imposed" (CPL 530.12 [5] [A]). For
purposes of calculating the duration of an order of protection,
defendant's sentence here included the mandatory period of
postrelease supervision (see People v Crowley, 34 AD3d 866, 868
[2006], lv denied 7 NY3d 924 [2006]). Accordingly, with the
postrelease supervision term, the sentence was 28 years and,
inasmuch as defendant was not in custody for more than eight
years prior to sentencing, the order of protection does not
violate CPL 530.12 (5) (A).

     Peters, P.J., Stein, Garry and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
