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

533
KA 10-02445
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

STEPHEN O. WILLIAMS, JR., DEFENDANT-APPELLANT.


DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered November 4, 2010. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
and sexual abuse in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of sexual abuse in the first degree (Penal Law §
130.65 [2]) and sexual abuse in the third degree (§ 130.55).
Defendant failed to preserve for our review his challenge to the legal
sufficiency of the evidence inasmuch as he made only a general motion
for a trial order of dismissal (see People v Gray, 86 NY2d 10, 19),
and he failed to renew that motion after presenting evidence (see
People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any
event, that contention lacks merit (see generally People v Bleakley,
69 NY2d 490, 495). The jury reasonably could have found that
defendant engaged in “ ‘[s]exual contact’ ” when he touched the
victim’s buttocks (§ 130.00 [3]; see Matter of Kenny O., 276 AD2d 271,
272, lv denied 96 NY2d 701; People v Felton, 145 AD2d 969, 971, lv
denied 73 NY2d 1014), and that such touching was “for the purpose of
gratifying [defendant’s] sexual desire” (§ 130.00 [3]; see People v
Stewart, 57 AD3d 1312, 1315, lv denied 12 NY3d 788, cert denied ___ US
___, 130 S Ct 1047). With respect to the count charging defendant
with sexual abuse in the first degree, the testimony of the victim
that she was asleep when defendant began touching her was legally
sufficient to establish the element of physical helplessness (see
People v Smith, 16 AD3d 1033, 1034, affd 6 NY3d 827, cert denied 548
US 905; see generally § 130.00 [7]), even in the absence of evidence
that sleep was induced by drug or alcohol use (see People v Irving,
151 AD2d 605, 605-606; see generally People v Manning, 81 AD3d 1181,
1181-1182). With respect to the count charging defendant with sexual
                                 -2-                           533
                                                         KA 10-02445

abuse in the third degree, the People presented legally sufficient
evidence that the victim was 16 years old at the time of the incident
and thus incapable of consenting (see § 130.05 [2] [b]; [3] [a]).

     We reject defendant’s further contention that County Court erred
in failing to give the jury a missing witness charge with respect to
the victim’s mother (see generally People v Kitching, 78 NY2d 532,
536-537; People v Gonzalez, 68 NY2d 424, 427-428). Defendant’s
request for that charge was untimely because it was not made until
both parties had rested, rather than at the close of the People’s
proof, when defendant became “aware that the witness would not
testify” (People v Hayes, 261 AD2d 872, 873, lv denied 93 NY2d 1019,
1021). In any event, we conclude that the People demonstrated that
the victim’s mother was unavailable (see generally Kitching, 78 NY2d
at 536-537), inasmuch as her “whereabouts [were] unknown and that
diligent efforts to locate [her had] been unsuccessful” (Gonzalez, 68
NY2d at 428).

     Contrary to defendant’s contention, he was not deprived of his
constitutional right to present a defense when the court barred one of
his potential witnesses from testifying concerning certain statements
made by the victim’s mother. In those statements, the victim’s mother
allegedly threatened to accuse defendant of the crimes at issue as
part of an extortion scheme. The “right to present a defense does not
give criminal defendants carte blanche to circumvent the rules of
evidence” (People v Hayes, 17 NY3d 46, 53, cert denied 132 S Ct 844
[internal quotation marks omitted]). The courts therefore have the
discretion to exclude evidence sought to be introduced by a defendant
where such evidence is irrelevant or constitutes hearsay, and its
probative value is “outweighed by the dangers of speculation,
confusion, and prejudice” (id. at 54; see People v Procanick, 68 AD3d
1756, 1756, lv denied 14 NY3d 844), or where such evidence is “too
slight, remote or conjectural to have any legitimate influence in
determining the fact in issue” (People v Martinez, 177 AD2d 600, 601,
lv denied 79 NY2d 829). Finally, the sentence is not unduly harsh or
severe.




Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
