Sufficiency of the evidence; CSC II; People v DeLeon; Sentencing; Proportionality; People v Bowling; Sex Offenders Registration Act (SORA)

Concluding that: (1) the evidence was sufficient to support defendant’s CSC II conviction, (2) he had “not overcome the presumption of proportionality applicable to his within-guidelines sentence[,]” and (3) he had “not identified any ‘unusual’ circumstances . . . [or] overcome the presumption that his sentence is reasonable[,]” the court affirmed. It rejected his insufficient evidence claim, noting “the video clips depicted defendant touching the victim’s intimate parts as defined in DeLeon[.]” And even “without the videos, the trial record contains sufficient evidence to support” his conviction. The victim, who was 9 years old at “trial, testified that defendant ‘tickle[d]’ her ‘birdie’ and that made her feel ‘weird.’ [She] told the jury that the incident happened in the ‘living room’ of her mother’s house ‘by the tv kind of.’” She said “defendant ‘tickled her birdie’ with one hand ‘over’ her clothing. That testimony was sufficient to permit the jury to convict defendant of” CSC II. He claimed “the victim denied anything inappropriate occurred until ‘long after’ the offense, and he implie[d] [she] was coached to believe she was touched inappropriately. However, the victim’s first forensic interview was one week after the offense, and in that interview, the victim stated that defendant tickled her between her legs. Although [she] initially denied that defendant touched her genitalia, the conduct reported in the first interview could nonetheless be reasonably construed as sexual conduct.” The court also noted defendant’s claim was “essentially that the victim was not a credible witness,” but it must “draw all reasonable inferences and make credibility choices in support of the jury verdict.” As a fourth-offense habitual offender, “his minimum sentencing guidelines range was 36 to 142 months[.]” The trial court sentenced him to a minimum of 142 months, “which was within the applicable guidelines range. Hence, defendant’s sentence was presumptively reasonable, so he must rebut that presumption.” Defendant had “no basis to characterize as impermissible his minimum prison term of 142 months, which pales in comparison to the 1,200-month minimum prison term” the court upheld in Bowling. His record included convictions for CSC IV and failing to comply with the SORA, as well as three other felony offenses. He was just 34 years old when he was sentenced for CSC II “with a seven-year-old victim, so his 142-month minimum prison term will enable him to be considered for parole long before he turns 50.” Thus, he had “not overcome the presumption of proportionality.” Defendant further contested “his sentence by accusing the trial court of failing to consider the fact that the incident occurred in front of a camera, indicating that his actions were unintentional.” He also claimed “the trial court failed to note that [he] had a ‘dysfunctional childhood,’ that [he] had successfully completed two substance-abuse treatment programs, that [he] could be reformed, that [he] had a supportive family, and that [he] was ‘courteous.’” First, the claim that his “actions were unintentional cannot be squared with the jury’s verdict that defendant acted intentionally and for a sexual purpose. Second, during the sentencing hearing, the trial court discussed all the factors defendant describes as disregarded.”