         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1243
KA 09-02638
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LOUIS LEDDICK, DEFENDANT-APPELLANT.


FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (ROBERT R. REITTINGER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered March 27, 2009. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault against a
child (two counts), rape in the first degree, criminal sexual act in
the first degree and sexual abuse in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that all of the sentences
imposed shall run concurrently with respect to each other and as
modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
following a jury trial, of two counts of predatory sexual assault
against a child (Penal Law § 130.96), and one count each of rape in
the first degree (§ 130.35 [3]), criminal sexual act in the first
degree (§ 130.50 [3]) and sexual abuse in the first degree (§ 130.65
[3]). The conviction arises out of defendant’s sexual assault of a
seven-year-old girl with whom he had forcible sexual intercourse.
According to the testimony at trial, a medical examination of the
victim revealed that she had sustained a third degree laceration of
the vaginal area, similar to a tear from a vaginal birth, which
extended down to her anal sphincter. Defendant’s contention that the
evidence is legally insufficient to support the conviction is
unpreserved for our review (see People v Gray, 86 NY2d 10, 19). We
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]), other
than to note that the evidence that defendant engaged in sexual
intercourse with the victim is overwhelming. 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).
                                 -2-                          1243
                                                         KA 09-02638

     We agree with defendant, however, that County Court erred in
directing that the sentences imposed on counts one and three of the
indictment, for predatory sexual assault and rape related to penis to
vagina sexual contact, shall run consecutively to the sentences
imposed under counts two and four of the indictment, for predatory
sexual assault and criminal sexual act based on penis to anus sexual
contact. The evidence established that defendant committed only one
act of sexual assault, during which his penis entered the victim’s
vagina with such force that it tore through the vaginal wall and
entered the anus. Thus, his penile contact with the victim’s vagina
and anus occurred as “ ‘part and parcel of the [same] continuous
conduct’ ” (People v Watkins, 300 AD2d 1070, 1071, lv denied 99 NY2d
659). The court directed that the sentence imposed on count five run
concurrently to the sentence imposed on count three, and we conclude
that all of the sentences must run concurrently (see People v Laster,
78 AD3d 1479, 1481, lv denied 16 NY3d 798), which results in an
aggregate sentence of imprisonment of 25 years to life. We therefore
modify the judgment accordingly.




Entered:   November 18, 2011                   Patricia L. Morgan
                                               Clerk of the Court
