Defendant appeals from a judgment of the Criminal Court, New York County (Robert M. Stolz, J.), rendered May 25, 2004, after a nonjury trial, convicting him of forcible touching in the third degree, endangering the welfare of a child, and sexual abuse in the third degree, and imposing sentence.

PER CURIAM:

Judgment of conviction (Robert M. Stolz, J.), rendered May 25, 2004, modified, on the law, to the extent of reducing the term of probation for the endangering the welfare of a child count to 3 years, and as modified, affirmed.

The forcible touching count of the prosecutor's information was not jurisdictionally defective inasmuch as it incorporated by reference the statutory provision applicable to the offense charged (see People v D'Angelo, 98 NY2d 733 [2002]).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis to disturb the trial court's determinations concerning the victim's credibility (see People v Gaimari, 176 NY 84 [1903]).

"Evidence that a victim of a sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place" (People v McDaniel, 81 NY2d 10, 16 [1993]). Inasmuch as the victim's disclosures were made at the first suitable opportunity and within hours after the incident occurred, we agree that they were promptly made and that the testimony at issue was properly admitted (see People v Shelton, 1 NY3d 614 [2004]). Defendant's argument that the admission of the prompt outcry testimony violated his constitutional right of confrontation is unpreserved and unavailing, because the statements were not testimonial under Crawford v Washington, 541 US 36 [2004], and the Confrontation Clause does not bar prior statements of declarants who appear for cross-examination at trial, or statements admitted for purposes other than establishing the truth of the matter asserted (see People v Nunez, 7 AD3d 298 [2004], lv denied 3 NY3d 679 [2004]).

The trial court properly concluded that the brief out-of-court conversation between a prosecution witness and the victim did not warrant a mistrial since there was no demonstrable [*2]showing of prejudice to defendant or deprivation of his right to a fair trial (see People v Baptiste, 72 NY2d 356 [1988]).

As the People concede, defendant was improperly sentenced to a six-year term of probation on the endangering the welfare of a child count. The sentence must be modified to reduce the term of probation to three years because the endangering charge is not a "sexual assault" offense under Penal Law § 65.00(3).

This constitutes the decision and order of the court.
I concurI concur
Decision Date: April 21, 2006