                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 21, 2016                     105502
________________________________

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

RICHARD W. THORNTON,
                    Appellant.
________________________________


Calendar Date:   May 25, 2016

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

                             __________


     Albert F. Lawrence, Greenfield Center, for appellant.

      Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.

                             __________


Devine, J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered August 29, 2012, upon a verdict
convicting defendant of the crimes of predatory sexual assault
against a child, course of sexual conduct against a child in the
second degree and endangering the welfare of a child (two
counts).

      Defendant was charged in an indictment with several
offenses arising from the alleged sexual abuse of two underage
girls over prolonged periods of time, specifically, victim A
(born in 1996) from 2002 to 2009 and victim B (born in 1998) from
2008 to 2010. Following a jury trial, defendant was convicted of
course of sexual conduct against a child in the second degree and
endangering the welfare of a child with regard to victim A. The
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jury further found him guilty of predatory sexual assault against
a child and endangering the welfare of a child with regard to
victim B. County Court imposed concurrent sentences, resulting
in an aggregate prison sentence of 14 years to life, in addition
to 10 years of postrelease supervision should defendant be
released (see Penal Law § 70.45 [5]). Defendant now appeals.

      We affirm. Defendant initially contends, as he did in his
trial motion to dismiss, that the verdict convicting him of the
two felony charges was not supported by legally sufficient
evidence given the lack of proof as to when the abuse occurred.1
In that regard, defendant and the victims resided together
throughout the period of the abuse. The trial testimony
established where they resided and, as is relevant here, they
lived in a brown house from 2005 to 2008 and, after several weeks
in campers, moved into a newly built home in 2008. Victim A
testified that, during a swimming outing in 2002 when she was six
years old, defendant placed her on his knee and inserted his
finger into her vagina. She promptly disclosed that incident to
relatives, a point confirmed by one of those relatives
(see People v Rosario, 17 NY3d 501, 511-513 [2011]; People v
Fournier, 137 AD3d 1318, 1320 [2016]). The abuse resumed when
victim A was 11 years old and living in the brown house, limiting
the period to 2007 or early 2008, when defendant entered her
bedroom and inserted his finger into her vagina. Victim A then
detailed two additional incidents, a summer 2008 incident when
defendant engaged in the same conduct in the camper and another
where he attempted to molest her in the newly built residence.
When viewed in the light most favorable to the People, this


    1
        Defendant argued at trial that, while the victims' ages
were established at trial, the requisite proof as to his age was
lacking (see Penal Law §§ 130.75 [1] [b]; 130.80 [1]
[b]; 130.96). Inasmuch as the jury was aware that defendant had
fathered a child before the offenses, was married in 2004 and had
the opportunity to observe defendant at trial, there was indeed
"a legally sufficient basis for the jury to find that defendant
was at least 18 years old at the time of the offense[s]" (People
v Kittles, 23 AD3d 775, 775-776 [2005], lv denied 6 NY3d 755
[2005]).
                              -3-                105502

testimony constituted legally sufficient proof for a rational
juror to find that, "over a period of time not less than three
months in duration . . . [defendant], being [18] years old or
more, engage[d] in two or more acts of sexual conduct with a
child less than [13] years old" so as to support a conviction on
the charge of course of sexual conduct against a child in the
second degree (Penal Law § 130.80 [1] [b]; see Penal Law § 130.00
[3], [10]; see e.g. People v Santiago, 118 AD3d 1163, 1164-1165
[2014], lv denied 24 NY3d 964 [2014]).

      As for victim B, she testified that, while in the brown
house, defendant began fondling her breasts, buttocks and vagina
over her clothing, he progressed to fondling under her clothing,
and that such abuse was a regular occurrence. She further
testified that defendant began having anal sex with her not long
after moving into the newly built residence in 2008 – a point
inferable from her recollection that it first occurred there when
she was nine or 10 years old – and that they had anal sex every
week or so until shortly before she disclosed the abuse to family
members in 2010. She additionally testified to at least one
incident where defendant subjected her to vaginal sex. A
rational juror could readily find from this proof that defendant,
"over a period of time not less than three months in duration
. . . [and] being [18] years old or more, engage[d] in two or
more acts of sexual conduct, which include at least one act of
sexual intercourse . . . [or] anal sexual conduct . . . with a
child less than [13] years old" (Penal Law § 130.75 [1] [b];
see Penal Law § 130.00 [1], [2] [b]; [10]). Legally sufficient
proof therefore existed to find defendant guilty of predatory
sexual assault against a child (see Penal Law § 130.96; People v
Sorrell, 108 AD3d 787, 788-789 [2013], lv denied 23 NY3d 1025
[2014]; People v Lupo, 92 AD3d 1136, 1137 [2012]).

      Defendant further asserts that the verdict was against the
weight of the evidence. "[W]hile an acquittal 'would not have
been unreasonable[,] . . . the jury was justified in finding
[him] guilty beyond a reasonable doubt'" (People v Monroe, 134
AD3d 1138, 1140 [2015], quoting People v Danielson, 9 NY3d 342,
348 [2007]). There were inconsistencies between the young
victims' pretrial accounts of their ordeal and their trial
testimony, but those inconsistencies were fully explored during
                              -4-                105502

the cross-examination of the victims and do "not justify
reversing a guilty verdict as against the weight of the evidence"
(People v Monroe, 134 AD3d at 1140; see People v Fournier, 137
AD3d at 1320). A nurse who was trained to conduct sexual assault
examinations testified that she performed examinations of both
victims and the findings of those examinations were more likely
than not to have been caused by sexual abuse. A physician called
by defendant disagreed with the nurse, but the People subjected
him to a blistering cross-examination that left his credibility
in serious question. The jury chose to credit the testimony of
the victims and other corroborating proof and, after according
deference to that determination and weighing the conflicting
proof ourselves, we cannot say that the ensuing verdict was
against the weight of the evidence (see People v Fournier, 137
AD3d at 1320; People v Monroe, 134 AD3d at 1140).

      Defendant next contends that the People failed in their
Brady obligation to turn over information regarding the
investigation of the 2002 incident of abuse reported by victim A.
The record reflects that victim A's relatives reported that
allegation to child protective officials, who did investigate the
report of abuse and deemed it to be "unfounded." The report was
accordingly sealed and, while a copy could thereafter be obtained
as part of a law enforcement investigation into whether an
intentionally false claim of abuse had been made, there is
nothing to suggest that such an investigation occurred or that
the People otherwise came into possession of the report (see
Social Services Law § 422 [5] [a] [v]; [14]). Defendant was
capable of obtaining the information in the unfounded report on
his own (see Social Services Law § 422 [5] [a] [iv]; [7]) and,
inasmuch as the People cannot be faulted for failing to turn over
material outside of their "custody, possession, or control,"
there was no Brady violation (People v Garrett, 23 NY3d 878, 886
[2014]; see People v Terry, 19 AD3d 1039, 1039-1040 [2005], lv
denied 5 NY3d 833 [2005]).

      Defendant lastly asserts that his aggregate sentence was
harsh and excessive. Predatory sexual assault against a child is
a class A-II felony sex offense for which the minimum
indeterminate sentence is 10 years to life in prison (see Penal
Law §§ 70.00 [2] [a]; [3] [a] [ii]; 70.80 [3]; 130.96). The
                              -5-                  105502

imposed sentence of 14 years to life in prison on that conviction
was only modestly above the statutory minimum and, considering
the acts for which defendant was convicted, we perceive no abuse
of discretion or extraordinary circumstances that would warrant
its reduction.

     Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
