Appeal by defendant from judgments of the Justice Court, Town of Riverhead, Suffolk County (R. Ehlers, J.), rendered November 24, 2003, convicting him

of sexual abuse in the second degree (Penal Law § 130.60 [2]) and endangering the welfare of a child (Penal Law § 260.10 [1]), and imposing sentence.

Judgments of conviction unanimously affirmed.

A person is guilty of sexual abuse in the second degree when he subjects another person to sexual contact and when such other person is less than 14 years old (Penal Law § 130.60 [2]). Sexual contact means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party (Penal Law § 130.00 [3]). It includes the touching of the victim by the actor, whether directly or through clothing (Penal Law § 130.00 [3]). There is no requirement that actual gratification occur, but only that the touching be for that purpose (People v Teicher, 52 NY2d 638, 646 [1981]). At trial, the complainant testified that while in the wave pool at an amusement park, she noticed defendant, an older person who was wearing sunglasses and a black T-shirt, smiling at her. She felt uncomfortable and moved to the other side of the pool. About three to five minutes later, at the other side of the pool, as she came up from a wave, she observed defendant, for a second time, standing in front of her. Another wave came and propelled her toward defendant, who touched her vagina for a couple of seconds. He then smiled at her and dove back into the water. At that time, she noticed that defendant had a black tattoo on his arm and was wearing sandals. She exited the pool and told her mother what had transpired. Shortly thereafter, complainant, aged 13, in the presence of staff at the park, identified defendant.

The testimony of complainant, the sole eyewitness, is sufficient to support a judgment of conviction (see People v Arroyo, 54 NY2d 567 [1981], cert denied 456 US 979 [1982]; People v [*2]Hopper, 112 AD2d 317, 318 [1985]). The court, sitting as the trier of facts, was entitled to give great weight to the testimony of the complainant. Matters of credibility, reliability as well as the weight to be accorded to the evidence presented are primarily issues to be determined by the trier of facts, which saw and heard the witnesses (People v Gaimari, 176 NY 84 [1903]; see also People v Atlas, 183 App Div 595 [1918], affd 230 NY 629 [1921]; People v Bopp, 5 Misc 3d 126[A], 2004 NY Slip Op 51186[U] [App Term, 9th & 10th Jud Dists]). The evidence, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of the court's factual review power, we find that the verdict was not against the weight of the evidence (CPL 470.15 [5]).

Inasmuch as the evidence presented by the People was, as noted prior hereto, legally sufficient to support defendant's conviction of sexual abuse in the second degree, the failure of defense counsel to move for dismissal based on legal insufficiency does not constitute ineffective assistance of counsel. In addition, the verdict of guilty to endangering the welfare of a child was not repugnant.

Finally, defendant's contention that he did not execute a valid jury waiver is also without merit. Defendant executed a written waiver in open court following consultation with his attorney. Defendant, upon questioning by the court, confirmed that he wanted the court to decide the case even though he had a right to a trial by jury. In view of the foregoing, the court properly accepted defendant's jury waiver (see CPL 320.10 [2]; People v Lamphier, 302 AD2d 864 [2003], lv denied 99 NY2d 656 [2003]; People v Buckley, 299 AD2d 417 [2002], lv denied 99 NY2d 580 [2003]).
Decision Date: June 30, 2005