It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed and the matter is remitted to Ontario County Court for resentencing.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of sexual abuse in the first degree (Penal Law § 130.65). We reject defendant's contention that the evidence is legally insufficient to support the conviction ( see generally People v. Bleakley, 69 N.Y.2d 490, 495). The element of sexual gratification "may be inferred from [defendant's] conduct itself" ( People v. Anthony D., 259 A.D.2d 1011, 1011, lv denied 93 N.Y.2d 1001). Defendant has failed to preserve for our review his contentions that County Court erred in instructing potential jurors during voir dire and erred in denying his request to charge sexual abuse in the third degree (§ 130.55) as a lesser included offense of sexual abuse in the first degree ( see CPL 470.05), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see 470.15 [6] [a]).
We reject defendant's further contention that the sentence is unduly harsh or severe. Although not raised by defendant, we note that there is a discrepancy between the sentencing minutes and the "corrected" certificate of conviction. The sentencing minutes fail to provide for a period of post-release supervision, while the "corrected" certificate of conviction provides for a three-year period of post-release supervision. Here, the period of post-release supervision may range from 1½ to 3 years ( see Penal Law § 70.45). We therefore modify the judgment by vacating the sentence, and we remit the matter to Ontario County Court for resentencing ( see People v. Freeney, ___ A.D.2d ___ [decided Feb. 1, 2002]; People v. Sinkler, 288 A.D.2d 844; People v. Shand, 280 A.D.2d 943, lv denied 96 N.Y.2d 834).