Motion by the defendant pursuant to CPL §330.30 to set aside the jury verdict rendered at trial on July 15, 2010 convicting him of course of sexual conduct against a child in the first degree (Penal Law §130.75[1][b]), a class B felony. The defendant asserts, as a matter of law, that the trial evidence was not legally sufficient to establish the defendant's guilt beyond a reasonable doubt as to one of the acts of sexual conduct upon which his conviction is premised, namely an act of oral sexual conduct. Specifically, the defendant contends that the evidence was legally insufficient to establish contact between the defendant's mouth and the victim's vulva or vagina.

At trial, the victim testified on direct examination as follows regarding an occasion when she was in the defendant's bedroom and he touched her "in my private area" (Exhibit A to defendant's motion — Trial Transcript, page 44, lines 2-15):

"Q .And when you say private area, what are you referring to?

A.Vagina. [*2]

Q.And what do you call it?

A.Private square.

Q.Private square. And when you say he touched you there, what part of his body did he use to touch you?

A.His tongue.

THE COURT:What was that?

THE WITNESS:His tongue.

MS. SPRAGUE:His tongue."

The victim further testified on direct that even after she told the defendant to stop, he continued to touch her with his tongue "for a few seconds then he stopped" (page 45, lines 1-9). On cross-examination, the victim testified that this incident when the defendant touched her "private square" occurred in "late August" 2008 (page76, lines 5-7). She could not identify the exact point of contact (page 75, lines 14-16) other than to say that it was "[n]ot that far" from the exact point where her urine comes out (page 75, lines 14-22), which she estimated was about an inch or inch and one-half (page 75, line 22, to page 76, line 2).

When a defendant's motion under CPL §330.30(1) asserts that there are issues of law which "would require a reversal or modification of the judgment as a matter of law by an appellate court" (CPL 330.30[1]), the trial court is restricted to determining whether the trial evidence, when viewed in the light most favorable to the People (People v. Contes, 60 NY2d 620, 467 NYS2d 349, 454 NE2d 932; People v. Hobot, 200 AD2d 586, 606 NYS2d 277), was legally sufficient to establish the defendant's guilt of the offense for which he was convicted (see People v. Garcia, 237 AD2d 42, 668 NYS2d 5, appeal granted 91 NY2d 972, 672 NYS2d 852, 695 NE2d 721, reversed 93 NY2d 42, 687 NYS2d 601, 710 NE2d 247, on remand 272 AD2d 189, 707 NYS2d 441, leave to appeal denied 95 NY2d 889, 715 NYS2d 381, 738 NE2d 785). The trial court is not empowered to set aside the verdict as against the weight of the evidence, but instead must determine only "whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial" (People v. Bleakley, 69 NY2d 490, 515 NYS2d 761, 508 NE2d 672) in order to uphold the verdict (see also, People v. Hampton, 64 AD3d 872, 874, 883 NYS2d 338, 341).

" The law recognizes that the scope of a reasonable mind is broad. Its conclusion is not always a point certain, but, upon given evidence, may be one of a number of conclusions. Both innocence and guilt beyond a reasonable doubt may lie fairly within the limits of reasonable conclusion from given facts. The judge's function [*3]is exhausted when he determines that the evidence does or does not permit the conclusion of guilt beyond reasonable doubt within the fair operation of a reasonable mind' " (People v. Jackson, 65 NY2d 265, 271, 491 NYS2d 138, 142, 480 NE2d 727, 731, quoting Curley v. United States, 81 US App DC 389, 392-393, 160 F2d 229, 232-233, cert. denied 331 US 837, 67 SCt 1512, 91 LEd 1850, rehearing denied 331 US 869, 67 SCt 1729, 91 LEd 1872).

"A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months induration . . . he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which include at least one act of . . . oral sexual conduct . . .with a child less than thirteen years old" (Penal Law §130.75[1][b]). " Oral sexual conduct' means conduct between persons consisting of contact between . . . the mouth and the vulva or vagina" (Penal Law §130.00[2][a]). Notably, neither "vulva" nor "vagina" are defined in either article 130 or elsewhere in the Penal Law.

Here, no request was made by counsel for the Court to provide the jury with a definition of "vagina" beyond that contained in the official charge (see CJI2d [NY] Penal Law §130.75[1][b]). However, the Court did include in its charge a definition of "vulva" — "The vulva is generally defined as the external genital organs of a female" — based upon the definition of that term in Webster's II New College Dictionary (3rd ed., p. 1269). "In the absence of [a] statutory definition, the meaning ascribed to a word or phrase by the lexicographers may serve as a useful guidepost. (McKinney's Cons.Law of NY, Book 1, Statutes, §234.)" (Quotron Systems, Inc. v. Gallman, 39 NY2d 428, 431, 384 NYS2d 147, 148, 348 NE2d 604, 606).

It was well within the bounds of reason for the jury to determine that the defendant had engaged in oral sexual conduct with the victim based upon either the victim's direct and unrefuted reference to her "vagina" as the place on her body that the defendant touched her with his tongue (see People v. Roe, 235 AD2d 950, 653 NYS2d 966, appeal denied 89 NY2d 1099, 660 NYS2d 393, 682 NE2d 994 [child testified that defendant "used his mouth on my breasts and vagina"]) or the victim's testimony as to the area of her body where he placed his tongue. Because the terms "vagina" and "vulva" are not defined in either article 130 or elsewhere in the Penal Law, it was incumbent upon the Court and the jury to construe them "according to the fair import of their terms to promote justice and effect the objects of the law" (Penal Law §5.00; see also People v. Cruz, 48 NY2d 419, 428, 399 NE2d 513, 517, 423 NYS2d 625, 629 ["words and phrases used in a statute should be given their ordinary meaning when . . . the Legislature has given no indication that a different meaning was intended"]; People v. Baxter, 196 AD 824, 826, 188 NYS 181, 182 ["the words of a statute must be given their usually accepted significance unless their context or the language of the statute otherwise indicates"]). Thus, the Court was not [*4]obligated to instruct the jury, or apply on this motion, "the anatomically correct definition of [vagina or vulva]" (People v. Mayes, 267 AD2d 1040, 702 NYS2d 726, leave to appeal denied 94 NY2d 950, 710 NYS2d 7, 731 NE2d 624).

"[A]fter viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the [acts alleged] beyond a reasonable doubt" (People v. Santi, 3 NY3d 234, 246, 785 NYS2d 405, 818 NE2d 1146, quoting Jackson v. Virginia, 443 US 307, 319, 99 SCt 2781, 61 LEd2d 560). The defendant's motion is thus denied in all respects.

IT IS SO ORDERED.

ENTER

____________________________________

Richard B. Meyer

J.C.C.