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

507
KA 08-02457
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JASON TARO, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered September 5, 2008. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault against a
child, criminal sexual act in the first degree, sexual abuse in the
first degree and endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of criminal sexual act in the first degree and dismissing
count two of the indictment and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of predatory sexual assault against a child
(Penal Law § 130.96), criminal sexual act in the first degree (§
130.50 [3]), sexual abuse in the first degree (§ 130.65 [3]), and
endangering the welfare of a child (§ 260.10 [1]). We note at the
outset that defendant is correct that his conviction under count two
of the indictment, charging criminal sexual act in the first degree (§
130.50 [3]) must be reversed and that count dismissed as a lesser
inclusory concurrent count of count one, charging predatory sexual
assault against a child (see People v Alford, 65 AD3d 1392, 1394, mod
on other grounds 14 NY3d 846; see generally People v Scott, 61 AD3d
1348, 1349-1350, lv denied 12 NY3d 920, 13 NY3d 799). We therefore
modify the judgment accordingly. Defendant’s further contention that
counts one and two are multiplicitous is unpreserved for our review
(see CPL 470.05 [2]), and we conclude in any event that his contention
is without merit (see People v Baker, 67 AD3d 1446, 1447, lv denied 14
NY3d 769; People v Dann, 17 AD3d 1152, 1153, lv denied 5 NY3d 761).

     Although defendant failed to preserve for our review his further
contention that he was deprived of a fair trial by prosecutorial
misconduct (see CPL 470.05 [2]), we would nevertheless reject that
                                 -2-                          507
                                                        KA 08-02457

contention even if defendant had preserved it for our review.
“Reversal on grounds of prosecutorial misconduct ‘is mandated only
when the conduct has caused such substantial prejudice to the
defendant that he [or she] has been denied due process of law’ ”
(People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711), and that is
not the case here. We reject defendant’s further contentions that he
was denied effective assistance of counsel (see generally People v
Baldi, 54 NY2d 137, 147), and that the sentence is unduly harsh and
severe. We have reviewed defendant’s remaining contentions and
conclude that none requires reversal or further modification of the
judgment.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
