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The People of the State of New York v. David Gallegos

SUPREME COURT OF THE STATE OF NEW YORK


February 16, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DAVID GALLEGOS,
APPELLANT.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Deborah Stevens Modica, J.), rendered July 25, 2007. The judgment convicted defendant, after a non-jury trial, of three counts of sexual abuse in the third degree and three counts of harassment in the second degree.

People v Gallegos (David)

Decided on February 16, 2011

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 16, 2011

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS PRESENT: PESCE, P.J., WESTON and RIOS, JJ

ORDERED that the judgment of conviction is affirmed.

After a non-jury trial, defendant was convicted of three counts of sexual abuse in the third degree (Penal Law § 130.55) and three counts of harassment in the second degree (Penal Law § 240.26). His contention on appeal that the victim's testimony was incredible as a matter of law, thereby rendering the evidence legally insufficient to support the conviction, is not preserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 NY2d 620, 621 [1983]), we find it legally sufficient to establish defendant's guilt beyond a reasonable doubt. The victim's testimony was not incredible as a matter of law inasmuch as it was not "manifestly untrue, physically impossible, contrary to experience or self-contradictory" (People v Lynch, 63 AD3d 959, 959 [2009] [internal quotation marks and citations omitted]; People v Bassett, 55 AD3d 1434 [2008]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]). Upon a review of the record, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 644 [2006]).

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: February 16, 2011

20110216

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