                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 3, 2015                   104535
________________________________

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

RICHARD R. MONROE JR.,
                    Appellant.
________________________________


Calendar Date:   October 22, 2015

Before:   Peters, P.J., Garry, Rose and Clark, JJ.

                             __________


     Justin C. Brusgul, Voorheesville, for appellant.

      Kristy L. Sprague, District Attorney, Elizabethtown (James
E. Martineau of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of Essex County
(Meyer, J.), rendered September 16, 2010, upon a verdict
convicting defendant of the crime of course of sexual conduct
against a child in the first degree.

      Following a jury trial, defendant was found guilty of one
count of course of sexual conduct against a child in the first
degree for repeatedly subjecting a child to sexual conduct
between July 1, 2007 and October 31, 2008, when she was ages 10
and 11 and he was in his 50s. Investigation into the abuse began
in July 2008 after a married couple witnessed defendant – the
boyfriend of the child's mother – inappropriately touching and
kissing the child in public on multiple occasions and notified
the local police department. After the child provided police and
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child protective services with a written statement describing
defendant's abuse, defendant was arrested and indicted. At
trial, the child, who was 13 years old at that time, testified
under oath that defendant first forced her to touch his penis
with her hand in July 2007. Among other things, the child also
testified that, while she was in defendant's bedroom around
September 2008, he removed her pants and her underwear and put
his tongue on her vagina. County Court sentenced defendant to a
25-year prison term, followed by 20 years of postrelease
supervision, and a $30,000 fine. Defendant now appeals.

      The crime of course of sexual conduct against a child in
the first degree required the People to prove that, over a period
of time not less than three months in duration, defendant, being
over age 18, "engage[d] in two or more acts of sexual conduct,
which include at least one act of . . . oral sexual conduct . . .
with a child less than thirteen years old" (Penal Law § 130.75
[1] [b]). Defendant challenges the legal sufficiency and weight
of the evidence, arguing only that the evidence does not support
a finding that the September 2008 incident constituted oral
sexual conduct. We are unpersuaded by either argument.

      Viewing the evidence in the light most favorable to the
People, legally sufficient evidence was adduced to establish that
defendant perpetrated the charged sexual conduct over a period of
three months or more (see People v Danielson, 9 NY3d 342, 349,
[2007]). The child's testimony established that defendant
engaged in two or more acts of sexual conduct, which included a
number of acts of sexual contact and at least one act of oral
sexual conduct (see Penal Law § 130.00 [2] [a]; [3]).
Specifically, while acknowledging that her lexicon included
another term for the word vagina, the child provided detailed
testimony regarding the September 2008 incident in which she
explicitly stated that defendant put his tongue on her vagina.
On cross-examination, the child further explained that
defendant's tongue touched her about an inch away from "where
[her] urine comes out." Contrary to defendant's contentions, the
foregoing was sufficient to establish that at least one act of
oral sexual conduct occurred (see People v Sorrell, 108 AD3d 787,
788-789 [2013], lv denied 23 NY3d 1025 [2014]; People v Lupo, 92
AD3d 1136, 1137 [2012]).
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      Likewise, while an acquittal "would not have been
unreasonable . . . the jury was justified in finding the
defendant guilty beyond a reasonable doubt" (People v Danielson,
9 NY3d at 348). Focusing largely on what he deems to be
inconsistencies in the child's statements regarding the details
of sexual conduct, as well as the child's failure to disclose the
oral sexual conduct during her initial interviews with the police
and a child protective services caseworker, defendant
characterizes the child's testimony as lacking in credibility.
However, the mere fact that a young child may be uncertain or
inconsistent in his or her disclosures or testimony will not
justify reversing a guilty verdict as against the weight of the
evidence (see People v Beauharnois, 64 AD3d 996, 998-999 [2009],
lv denied 13 NY3d 834 [2009]; People v Weber, 25 AD3d 919, 921
[2006], lv denied 6 NY3d 839 [2006]; People v Raymo, 19 AD3d 727,
728 [2005], lv denied 5 NY3d 793 [2005]). Furthermore, the child
testified that she did not immediately disclose the full extent
of defendant's sexual abuse because she was both scared of
hurting her mother and of getting in trouble and she was
uncomfortable talking about the abuse to the police investigator.
Thus, deferring to the jury's determination that the child was
credible and viewing the evidence in a neutral light, defendant's
conviction is not against the weight of the evidence (see People
v Wyre, 97 AD3d 976, 978 [2012], lv denied 19 NY3d 1030 [2012];
People v Reynolds, 81 AD3d 1166, 1166-1167 [2011], lv denied 16
NY3d 898 [2011]).

      Finally, under the circumstances presented herein, we are
unpersuaded by defendant's claim that the sentence imposed by
County Court – the maximum allowable per statute – was harsh or
excessive (see People v Beauharnois, 64 AD3d at 1001), and,
therefore, decline to reduce the sentence as a matter of
discretion in the interest of justice (see CPL 470.15 [3]). As
noted by County Court, defendant had a lengthy history of sexual
incidents involving young children and showed no remorse for his
conduct (see People v Nowinski, 36 AD3d 1082, 1084 [2007], lv
denied 8 NY3d 989 [2007]). However, as the People concede, the
fine imposed must be reduced as it exceeded the $5,000 statutory
maximum allowable for defendant's conviction (see Penal Law
§ 80.00 [1] [a]).
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     Peters, P.J., Garry and Rose, JJ., concur.



      ORDERED that the judgment is modified, on the law, by
reducing the fine imposed to $5,000 and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
