Appeal from a judgment of the County Court of Sullivan County (Labuda, J.), rendered October 13, 2011, upon a verdict convicting defendant of the crimes of rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, rape in the third degree, criminal sexual act in the third degree, sexual abuse in the third degree, endangering the welfare of a child (two counts) and unlawfully dealing with a child in the first degree (two counts).
As the result of an incident wherein he and an accomplice provided alcohol to the victim and sexually assaulted her, defendant was charged in an indictment with rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, rape in the third degree, criminal sexual act in the third degree, sexual abuse in the third degree, two counts of endangering the welfare of a child and two counts of unlawfully dealing with a child in the first degree. Defendant initially pleaded guilty to one count of rape in the first degree, but withdrew that plea with County Court’s permission. At the conclusion of the jury trial that ensued, defendant was convicted of all charges. County Court thereafter sentenced defendant to an aggregate prison term of 57 years, to be followed by post-release supervision of 20 years. Defendant now appeals.
Defendant first contends that the verdict was not supported
Defendant also asserts that County Court erred in permitting testimony by the emergency room physician as to whether the victim had been subjected to forcible rape. Inasmuch as defendant failed to object to that testimony at trial, this argument is unpreserved for our review (see People v Heath, 49 AD3d 970, 973 [2008], lv denied 10 NY3d 959 [2008]). The argument is unpersuasive in any case, as the testimony at issue constituted a proper opinion by a qualified expert as to “how likely it is that consensual intercourse cause[d] injuries such as” those suffered by the victim (People v Welch, 71 AD3d 1329, 1331 [2010], lv denied 15 NY3d 811 [2010]; see People v Vaello, 91 AD3d 548, 548 [2012], lv denied 19 NY3d 868 [2012]).
Defendant next contends that the sexual abuse in the first degree charge alleges that he forcibly inserted his finger in the victim’s anus, and argues that County Court erred in giving an
Defendant further argues that his sentence is harsh and excessive. In that regard, the present charges represent defendant’s first felony convictions and arise out of a single encounter with the victim (compare People v Nelson, 68 AD3d 1252, 1256 [2009]). The People now argue that the aggregate sentence should not be disturbed, but it is worthy of note that, at sentencing, they advocated for concurrent sentences that would result in an aggregate prison term of 25 years (see People v Cruz, 41 AD3d 893, 896-897 [2007], lv denied 10 NY3d 933 [2008]; compare People v Kuklinski, 24 AD3d 1036, 1037 [2005], lv denied 7 NY3d 758 [2006]). After reviewing all of the circumstances of this case and defendant’s prior criminal history, we modify defendant’s sentence in the interest of justice by directing that the sentences for all charges run concurrently with the exception of that for sexual abuse in the first degree, which will run consecutively to the sentences on the other charges. Thus, defendant’s sentence will be an aggregate prison term of 32 years to be followed by 20 years of postrelease supervision, which constitutes an appropriate punishment for his repulsive acts (see CPL 470.15 [2] [c]; [6] [b]; People v Wallace, 53 AD3d 795, 798 [2008], lv denied 11 NY3d 795 [2008]; People v Cruz, 41 AD3d at 896-897; People v Nickel, 14 AD3d 869, 872-873 [2005], lv denied 4 NY3d 834 [2005]).
Defendant’s remaining claims, including those advanced in his pro se supplemental brief, have been examined and found to be lacking in merit.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by directing that defendant’s sentences for rape in the first degree, criminal sexual act in the first degree, rape in the third degree, criminal sexual act in the third degree, sexual abuse in the third degree, endangering the welfare of a child (two counts) and unlawfully dealing with a child in the first degree (two counts) under counts 1, 2, 4, 5, 6, 7, 8, 9 and 10 of the indictment shall run concurrently to one another and consecutively to the sentence for sexual abuse in the first degree under count 3 of the indictment, and, as so modified, affirmed.