People v. Prue

—Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant was convicted following a bench trial of endangering the welfare of a child (Penal Law § 260.10 [1]). We reject the contention of defendant that Penal Law § 260.10 (1) is unconstitutionally vague as applied to him (see, People v Bergerson, 17 NY2d 398 , 403-404; People v Padmore, 221 AD2d 663 , 664, Iv denied 87 NY2d 1023 ; see also, People v Bright, 71 NY2d 376 ).

Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620 ), we conclude that it is legally sufficient to establish defendant’s guilt beyond a reasonable doubt. There is sufficient evidence from which the trier of fact could find that defendant "knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare” of the 12-year-old complainant (Penal Law § 260.10 [1]; see, People v Padmore, supra, at 664 ). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490 , 495).

There is no merit to the contention of defendant that the photographic exhibits were admitted into evidence without proper foundation (see, People v Corbett, 68 AD2d 772 , 779-780, affd 52 NY2d 714 ). Nor is there merit to his contention that the People violated their obligation under People v Rosario ( 9

Supreme Court properly denied defendant’s motion to set aside the verdict as inconsistent or repugnant (see, People v Loughlin, 76 NY2d 804 , 806-807; People v Tucker, 55 NY2d 1 , 6-7, rearg denied 55 NY2d 1039 ).

Considering all the circumstances in this case, we conclude that the imposition of a 30-day term of incarceration, as a condition of probation, is inappropriate. Therefore, we exercise our power to modify the sentence as a matter of discretion in the interest of justice by vacating the 30-day term of incarceration (see, CPL 470.15 [6] [b]) and otherwise affirm. (Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J.— Endangering Welfare Child.) Present—Denman, P. J., Pine, Callahan, Boehm and Fallon, JJ.