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

968
KA 10-02037
PRESENT: SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RODNEY M. NEWMAN, DEFENDANT-APPELLANT.


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.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered July 12, 2010. The judgment convicted defendant,
upon a jury verdict, of promoting a sexual performance by a child,
unlawful surveillance in the second degree (two counts), forcible
touching and endangering the welfare of a child (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the definite
sentence imposed on count four of the indictment shall run
concurrently with the indeterminate sentences and as modified the
judgment is affirmed.

     Memorandum: 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 NY2d 56, 61, rearg denied 97 NY2d 678). In any
event, that contention is without merit (see generally People v
Bleakley, 69 NY2d 490, 495).

     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 (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
                                 -2-                           968
                                                         KA 10-02037

be inferred from defendant’s conduct in placing surveillance cameras
in the first victim’s bathroom and bedroom (see generally People v
Willis, 79 AD3d 1739, 1740, lv denied 16 NY3d 864). 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 AD3d 1267,
1268, lv denied 11 NY3d 925; see People v Moore [appeal No. 2], 78
AD3d 1658, 1659-1660). With respect to the conviction of the first
count of endangering the welfare of a child, applicable to the first
victim, the People established that the recordings would be viewed by
him. In addition, 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 further contention that the verdict is
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495). The credibility of the witnesses was an issue for the jury to
determine, and we perceive no basis for disturbing that determination
(see People v Massey, 61 AD3d 1433, lv denied 13 NY3d 746).

     Also contrary to defendant’s contention, County Court did not err
in admitting a videotape in evidence. There were “sufficient
assurances of the identity and unchanged condition of the evidence . .
., and thus any alleged gaps in the chain of custody went to the
weight of the evidence, not its admissibility” (People v Kennedy, 78
AD3d 1477, 1478, lv denied 16 NY3d 798; see People v Hawkins, 11 NY3d
484, 494). Defendant failed to preserve for our review his contention
that the court erred in failing to conduct a Ventimiglia hearing to
determine the admissibility of certain testimony concerning
defendant’s prior bad acts (see People v Powell, 303 AD2d 978, 979, lv
denied 100 NY2d 565, 1 NY3d 541; People v Trembling, 298 AD2d 890,
891-892, lv denied 99 NY2d 540). Defendant also failed to preserve
for our review his contention that the court’s instructions to the
jury were improper (see People v Green, 35 AD3d 1211, 1212, lv
denied 8 NY3d 985). We decline to exercise our power to review those
contentions as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

     We agree with defendant, however, that the court erred in
directing that the definite sentence imposed on the misdemeanor count
of forcible touching shall run consecutively to the indeterminate
sentences imposed on the felony counts (see Penal Law § 70.35). “The
offense underlying the definite sentence was committed prior to the
date on which the [in]determinate sentence[s were] imposed, and thus
the definite sentence must run concurrently” with those sentences
(People v Glinski [appeal No. 2], 37 AD3d 1188, 1189; see People v
Leabo, 84 NY2d 952, 953). We therefore modify the judgment
accordingly. Finally, the sentence as modified is not unduly harsh or
severe.

Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
