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

442
KA 09-01802
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALFRED L. LIGAMMARI, JR., DEFENDANT-APPELLANT.


EVAN LUMLEY, BUFFALO, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered May 26, 2009. The judgment
convicted defendant, upon a jury verdict, of criminal sexual act in
the first degree (six counts), criminal sexual act in the third degree
(six counts), sexual abuse in the first degree, attempted rape in the
first degree, attempted rape in the third degree and endangering the
welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the sentence imposed for attempted rape in the
first degree to a determinate term of imprisonment of 3½ years and as
modified the judgment is affirmed in accordance with the following
memorandum: Defendant appeals from a judgment convicting him
following a jury trial of six counts each of criminal sexual act in
the first degree (Penal Law § 130.50 [1]) and criminal sexual act in
the third degree (§ 130.40 [2]), and one count each of sexual abuse in
the first degree (§ 130.65 [1]), attempted rape in the first degree
(§§ 110.00, 130.35 [1]), attempted rape in the third degree
(§§ 110.00, 130.25 [2]), and endangering the welfare of a child
(§ 260.10 [1]). By failing to renew his motion for a trial order of
dismissal after presenting evidence, defendant failed to preserve for
our review his challenge to the legal sufficiency of the evidence (see
People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any
event, defendant’s contention is without merit. Viewing the evidence
in the light most favorable to the People, as we must (see People v
Contes, 60 NY2d 620, 621), we conclude that there is a valid line of
reasoning and permissible inferences from which the jury could
conclude that the elements of the crimes were proven beyond a
reasonable doubt (see generally People v Bleakley, 69 NY2d 490, 495).
We further conclude that, viewing the evidence in light of the
elements of the crimes as charged to the jury (see People v Danielson,
9 NY3d 342, 349), the verdict is not against the weight of the
                                 -2-                           442
                                                         KA 09-01802

evidence (see generally Bleakley, 69 NY2d at 495).

      Contrary to defendant’s contention, Supreme Court did not abuse
its discretion by continuing the trial in defendant’s absence when
defendant did not appear in court on the final day of trial. The
record establishes that the court had given defendant the requisite
warnings (see People v Parker, 57 NY2d 136, 141), and he therefore
waived his right to be present at trial (see People v Zafuto, 72 AD3d
1623, 1623-1624, lv denied 15 NY3d 758; People v Jones, 31 AD3d 1193,
1193, lv denied 7 NY3d 868). Contrary to defendant’s further
contention, “[t]he fact that defendant was arrested [in another state]
for other charges while the jury was deliberating did not restore his
right to be present” (People v Larkin, 281 AD2d 915, 916, lv denied 96
NY2d 864; see People v Herrera, 219 AD2d 511, 511, lv denied 87 NY2d
847).

     Finally, we agree with defendant that the sentence of
incarceration is unduly harsh and severe. Thus, as a matter of
discretion in the interest of justice (see generally CPL
470.15 [6] [b]), we modify the judgment by reducing the sentence
imposed for attempted rape in the first degree to a determinate term
of incarceration of 3½ years, with the 10-year period of postrelease
supervision imposed by the court, thereby reducing the aggregate
sentence to a determinate term of incarceration of 35½ years, with a
period of 10 years of postrelease supervision.




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
