                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 18, 2015                     106522
________________________________

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

DAVID L. KAMP,
                    Appellant.
________________________________


Calendar Date:   April 23, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


      Brownstone, P.A., Orlando, Florida (Patrick Michael Megaro
of counsel), for appellant.

      John M. Muehl, District Attorney, Cooperstown (Michael F.
Getman of counsel), for respondent.

                             __________


McCarthy, J.P.

      Appeal from a judgment of the County Court of Otsego County
(Burns, J.), rendered November 15, 2013, upon a verdict
convicting defendant of the crime of criminal sexual act in the
third degree (six counts).

      Defendant was charged by indictment with criminal sexual
act in the third degree (six counts), stemming from allegations
that he engaged in oral sexual conduct with a 16-year-old
(hereinafter the victim) on six separate occasions. After trial,
the jury found defendant guilty as charged. Defendant was
thereafter sentenced to an aggregate term of 18 years in prison,
to be followed by 10 years of postrelease supervision. Defendant
now appeals.
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      County Court's Molineux ruling was not an abuse of
discretion. Defendant argues that, given that the charged crimes
only related to his alleged oral sexual conduct, the court erred
in allowing evidence that defendant touched the victim's breasts
and genitals with his hands and that he stated that he intended
to have intercourse with her. Considering that this contested
evidence related to the sexual abuse of the same victim during
the months preceding and including the months that the charged
crimes were alleged to have taken place, that evidence was
relevant for the nonpropensity purpose of providing "necessary
background information on the nature of the relationship between
defendant and the victim, . . . plac[ing] the charged conduct in
context" (People v Leeson, 12 NY3d 823, 827 [2009] [internal
quotation marks and citation omitted]; see People v Livrieri, 125
AD3d 579, 579 [2015]; People v Nash, 87 AD3d 757, 758-759
[2011]). Further, given the court's limiting instructions and
the particular relevance of the evidence in contextualizing the
victim's delayed reporting of defendant's alleged abuse, the
court did not abuse its discretion in finding that the
prejudicial effect of the evidence did not outweigh its probative
value (see People v Leeson, 12 NY3d at 826-827; People v
Livrieri, 125 AD3d at 579; People v Nash, 87 AD3d at 758-759).

      The verdict was not against the weight of the evidence. As
charged, the jury was required to find proof that defendant,
"[b]eing [21] years old or more, . . . engage[d] in oral sexual
conduct . . . with [the victim when she was] less than [17] years
old" (Penal Law § 130.40 [2]). Oral sexual conduct "means
conduct between persons consisting of contact between . . . the
mouth and the vulva or vagina" (Penal Law § 130.00 [2] [a]). The
victim testified that defendant, on at least six occasions, had
the victim take off her clothes before he proceeded to lick her
breasts and vagina. She further testified that defendant
directed her not to share these facts with the victim's mother
and that he asserted that people would not understand his sexual
relationship with her. A clinical social worker who specializes
in child victims of sexual abuse testified regarding the concept
of grooming – a process through which an adult perpetrator
prepares a child victim for the perpetrator's desired abuse
through progressive stages of sexual contact. In his testimony,
defendant denied the victim's allegations of his oral sexual
                              -3-                106522

conduct, but acknowledged that, for medical reasons, he had
licked his fingers and touched the victim's vagina on three
different occasions and had also rubbed medical cream on the
victim's body in locations that included underneath the victim's
breasts.

      As the jury was faced with conflicting testimony regarding
defendant's physical relationship with the victim, it was within
its province – after viewing the witnesses, hearing their
testimony and observing their demeanor – to credit the victim's
testimony and reject defendant's testimony as incredible (see
People v Romero, 7 NY3d 633, 644 [2006]; People v Desmond, 118
AD3d 1131, 1133 [2014], lv denied 24 NY3d 1002 [2014]). Granting
appropriate deference to that credibility determination, the
verdict was not against the weight of the evidence (see People v
Foulkes, 117 AD3d 1176, 1177 [2014], lv denied, 24 NY3d 1084
[2014]; People v Mercado, 113 AD3d 930, 932-933 [2014], lv denied
23 NY3d 1040 [2014]; People v Fernandez, 106 AD3d 1281, 1285-1286
[2013]).

      Further, although defendant sought adjournments prior to
and during the sentencing hearing, he did not apprise County
Court of his current contentions that either his right to the
counsel of his choice or CPL 390.50 (2) entitled him to such
adjournments.1 Defendant therefore failed to preserve those
arguments for our review (see People v Demps, 118 AD3d 1146, 1147
[2014], lv denied, 23 NY3d 1061 [2014]; People v Secore, 102 AD3d
1057, 1058 [2013], lv denied 21 NY3d 1019 [2013]), and we decline
to exercise our interest of justice jurisdiction.

      Finally, we reject defendant's contention that his sentence
was harsh and excessive. Defendant exploited a position of trust
that he had established with the victim and took efforts, in
directing the victim not to report the abuse, that served both
his purposes of evading justice and of allowing himself further


    1
        It was defendant's counsel of choice that made the
initial motion for the adjournment that failed to apprise County
Court that the motion was based on counsel's inability to appear
on the date previously scheduled for sentencing.
                              -4-                  106522

opportunity to sexually abuse the victim. Considering these
facts, as well as the fact that defendant received less than the
maximum statutory sentence, we find no abuse of discretion or
extraordinary circumstances warranting a reduction of his
sentence (see People v Card, 115 AD3d 1007, 1009 [2014], lv
denied 23 NY3d 961 [2014]; People v Jaeger, 96 AD3d 1172, 1175
[2012], lv denied, 19 NY3d 997 [2012]).

     Defendant's remaining contentions are without merit.

     Egan Jr., Devine and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
