         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1175
KA 11-00904
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD L. BARTLETT, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered June 2, 2010. The judgment convicted defendant,
upon a jury verdict, of forcible touching and endangering the welfare
of a child.

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

     Memorandum: Defendant appeals from a judgment convicting him,
following a jury trial, of forcible touching (Penal Law § 130.52) and
endangering the welfare of a child (§ 260.10 [1]). Contrary to
defendant’s contention, the evidence is legally sufficient to support
the conviction of forcible touching (see generally People v Bleakley,
69 NY2d 490, 495). Pursuant to Penal Law § 130.52, a person is guilty
of forcible touching when he or she “intentionally, and for no
legitimate purpose, forcibly touches the sexual or other intimate
parts of another person for the purpose of,” inter alia, gratifying
the sexual desire of the actor. The victim testified that defendant,
her teacher, pressed up against her backside and rubbed her thigh
approximately one inch from her vaginal area. Although County Court
initially charged the jury that forcible touching “means squeezing,
grabbing or pinching” (emphasis added), rather than charging the
statutory language that forcible touching “includes squeezing,
grabbing or pinching” (§ 130.52 [emphasis added]), the court charged
the correct definition of forcible touching in response to a note from
the jury during deliberations. We therefore conclude that the People
were not “bound to satisfy the heavier burden in this case,” i.e.,
that forcible touching means squeezing, grabbing or pinching (People v
Malagon, 50 NY2d 954, 956), inasmuch as “ ‘the jury, hearing the whole
charge, would gather from its language the correct rules that should
be applied in arriving at [a] decision’ ” (People v Ladd, 89 NY2d 893,
895, quoting People v Russell, 266 NY 147, 153). Viewing the evidence
                                 -2-                          1175
                                                         KA 11-00904

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 Bleakley, 69
NY2d at 495).

     Defendant further contends that the verdict is repugnant because
he was acquitted of the count charging sexual abuse in the third
degree (Penal Law § 130.55) and convicted of forcible touching and
endangering the welfare of the child. By failing to object to the
verdict as repugnant before the jury was discharged, defendant failed
to preserve his contention for our review (see People v Alfaro, 66
NY2d 985, 987; People v Roman, 85 AD3d 1630, 1630-1631, lv denied 17
NY3d 821), and we decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.05 [6] [a]). We reject defendant’s contention that the
failure of defense counsel to object to the verdict as repugnant
constitutes ineffective assistance of counsel. Defendant has failed
to establish the lack of a strategic decision on the part of defense
counsel inasmuch as a resubmission of the matter to the jury could
have resulted in a guilty verdict on the sexual abuse count (see
People v Perry, 27 AD3d 952, 953, lv denied 8 NY3d 883; see generally
Alfaro, 66 NY2d at 987).

     We have reviewed defendant’s remaining contentions and conclude
that they are without merit.




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
