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People v. Bracho

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 1, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
LUIS BRACHO, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered February 4, 2005, as amended March 23, 2005, convicting defendant, after a jury trial, of three counts of sexual abuse in the first degree and two counts of endangering the welfare of a child, and sentencing him to an aggregate term of 5 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., McGuire, DeGrasse, Freedman, Richter, JJ.

3787/04

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determination to credit the testimony of the two child victims. Each child's testimony was supported by surrounding circumstances.

Defendant's challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits (see People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). The remarks at issue constituted fair comment on the evidence and were responsive to defendant's summation, and the court's thorough instructions made it clear that defendant had no burden of proof (see People v Santiago, 52 NY2d 865 [1981]).

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

20100601

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