People v. Mendez-Huales

186 A.D.3d 859

127 N.Y.S.3d 773 (Mem)

The PEOPLE, etc., respondent,

v.Domingo MENDEZ–HUALES, appellant.

2018–03342

Ind.No. 17–00182

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 2, 2020

August 26, 2020

James D. Licata, New City, N.Y. (Ellen O'Hara Woods of counsel), for appellant.

Thomas E. Walsh II, District Attorney, New City, N.Y. (Carrie A. Ciganek of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Rockland County (David S. Zuckerman, J.), rendered February 27, 2018, convicting him of predatory sexual assault against a child, course of sexual conduct against a child in the first degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of course of sexual conduct against a child in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

As the People concede, the defendant's conviction of predatory sexual assault against a child under Penal Law § 130.96 requires dismissal of the lesser included count of course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(a) (see People v. Grier, 37 N.Y.2d 847, 848, 378 N.Y.S.2d 37, 340 N.E.2d 471 ; People v. Beauharnois, 64 A.D.3d 996, 1000–1001, 882 N.Y.S.2d 589 ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 )...