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People v. Cardona

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 17, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
VICTOR CARDONA, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered August 8, 2006, convicting defendant, after a jury trial, of two counts of rape in the second degree, and sentencing him to consecutive terms of 2 to 7 years, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Andrias, Gonzalez, Moskowitz, Renwick, JJ.

5480/05

The court properly exercised its discretion in admitting evidence that, in an incident that occurred shortly before the charged rapes, defendant showed pornographic pictures to the 13-year-old victim. This evidence was properly admitted to demonstrate defendant's pattern of increasingly serious sexual conduct toward the victim leading up to the charged crimes (see People v Rosario, 34 AD3d 370 [2006], lv denied 8 NY3d 949 [2007]). The evidence constituted highly probative background information that tended to explain the relationship between defendant and the victim and place the events in question in a believable context (see People v Dorm, NY3d, 2009 NY Slip Op 01065). We have considered and rejected defendant's remaining arguments relating to this evidence.

The court's Sandoval ruling, which permitted the People to elicit defendant's prior sexual abuse conviction without mentioning any underlying facts, balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]; People v Pavao, 59 NY2d 282, 292 [1983]; People v Rosado, 53 AD3d 455 [2008], lv denied 11 NY3d 835 [2008]).

The court properly permitted the People to rebut a claim of recent fabrication by introducing a prior consistent statement made by the victim, since this statement predated a particular motive to falsify that had been asserted by the defense (see People v McDaniel, 81 NY2d 10, 18 [1993]; People v Whitley, 14 AD3d 403, 406 [2005], lv denied 4 NY3d 892 [2005]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090317

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