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

323
KA 13-01948
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN R. CHRISLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN R. CHRISLEY, DEFENDANT-APPELLANT PRO SE.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered September 3, 2013. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
(two counts) and endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of, inter alia, two counts of sexual abuse in the first
degree (Penal Law § 130.65 [3]), defendant contends in his main brief
that County Court abused its discretion in allowing the People to
present evidence that, on a date prior to the incidents charged in the
indictment, he had a wet spot on the crotch area of his pants after
the then four-year-old victim had been sitting on his lap. We reject
that contention. “Evidence of uncharged crimes may be admissible if
it is relevant to establish some element of the crime under
consideration or if it falls within one of the recognized exceptions
to the general rule precluding such evidence, i.e., it is relevant to
demonstrate motive, intent, absence of mistake or accident, a common
scheme or plan, or the identity of defendant” (People v Ray, 63 AD3d
1705, 1706, lv denied 13 NY3d 838; see People v Ventimiglia, 52 NY2d
350, 359; People v Molineux, 168 NY 264, 293-294), provided that “its
probative value exceeds the potential for prejudice resulting to the
defendant” (People v Alvino, 71 NY2d 233, 242). Here, the Molineux
evidence admitted by the court was relevant to the issue of intent,
i.e., whether defendant’s subsequent touching of the victim’s intimate
parts was for the purpose of gratifying his sexual desire. Moreover,
given that defendant suggested to the police that his touching of the
victim was inadvertent, the evidence was relevant to establish the
                                 -2-                           323
                                                         KA 13-01948

absence of mistake. We further conclude that “the probative value of
the evidence was not outweighed by its prejudicial effect, and the
court’s limiting instruction minimized any prejudice to defendant”
(People v Washington, 122 AD3d 1406, 1408).

     Defendant failed to preserve for our review his further
contention in his main and pro se supplemental briefs that he was
deprived of a fair trial by prosecutorial misconduct on summation (see
CPL 470.05 [2]; People v Romero, 7 NY3d 911, 912). In any event, most
of the comments complained of by defendant were proper, and any
improper comments were not so pervasive or egregious as to deprive
defendant of a fair trial (see People v Heck, 103 AD3d 1140, 1143, lv
denied 21 NY3d 1074).

     Defendant failed to preserve for our review his further
contention in his main brief that the evidence is legally insufficient
to support the sexual abuse charges because the People failed to
establish that he acted for the purpose of gratifying his sexual
desires (see People v Gray, 86 NY2d 10, 19; People v Washington, 89
AD3d 1516, 1517, lv denied 18 NY3d 963). In any event, defendant’s
contention lacks merit inasmuch as the element of sexual gratification
may be inferred from defendant’s conduct (see People v Willis, 79 AD3d
1739, 1740, lv denied 16 NY3d 864; People v Graves, 8 AD3d 1045, 1045,
lv denied 3 NY3d 674). Moreover, 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 conclude that the verdict is not against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). The People’s case rested largely on the credibility of the
victim and, notwithstanding minor inconsistencies in the victim’s
testimony, there is no basis in the record for us to disturb the
jury’s determination to credit the victim’s testimony (see generally
People v Childres, 60 AD3d 1278, 1279, lv denied 12 NY3d 913).
“Sitting as the thirteenth juror . . . [and] weigh[ing] the evidence
in light of the elements of the crime[s] as charged to the other
jurors” (Danielson, 9 NY3d at 349), we conclude that, although a
different verdict would not have been unreasonable, it cannot be said
that the jury failed to give the evidence the weight it should be
accorded (see generally Bleakley, 69 NY2d at 495; People v Kalen, 68
AD3d 1666, 1666-1667, lv denied 14 NY3d 842).

     Finally, we reject defendant’s contention in his main brief that
the sentence is unduly harsh and severe.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
