Submitted - October 6, 2017
D. Futerfas, White Plains, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and
Ayelet Sela of counsel), for respondent.
WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Queens
County (Buchter, J.), rendered May 21, 2015, convicting him
of criminal sexual act in the first degree (three counts),
attempted rape in the first degree, sexual abuse in the first
degree, attempted sexual abuse in the first degree, and
endangering the welfare of a child, upon a jury verdict, and
that the judgment is affirmed.
that a sexual assault victim promptly complained about the
incident is admissible to corroborate an allegation that an
assault took place (see People v McDaniel, 81 N.Y.2d
10, 16). An outcry is prompt if made "'at the first
suitable opportunity'" and is "a relative
concept dependent on the facts" (id. at 17,
quoting People v O 'Sullivan, 104 NY 481, 486).
"There can be no iron rule on the subject. The law
expects and requires that it should be prompt, but there is
and can be no particular time specified" (Higgins v
People, 58 NY 377, 379). "[W]hat might qualify as
prompt in one case might not in another" (People v
McDaniel, 81 N.Y.2d at 17).
the trial court permitted testimony concerning one of the
defendant's victim's first "outcry" to her
parents approximately 4XA years after the
abuse had ended. According to the victim, the abuse occurred
around the time of her seventh birthday. Under all of the
circumstances of this case, including the victim's young
age, the ongoing and familial relationship between the victim
and the defendant, the defendant's warning not to tell
anyone, and the victim's fear of making the complaint
sooner, the trial court properly admitted evidence of the
victim's outcry to her parents (see People v
Shelton, 1 N.Y.3d 614; People v Ortiz, 135
A.D.3d 649, 650; People v Lapi, 105 A.D.3d 1084,
1088; People v Bonilla, 200 A.D.2d 369; cf.
People v Rosario, 17 N.Y.3d 501, 504; People v
Stone, 133 A.D.3d 982; People v Caban, 126
A.D.3d 808, 808-809).
defendant's contention that the evidence supporting his
convictions was legally insufficient is unpreserved for
appellate review (see CPL 470.05; People v
Hawkins, 11 N.Y.3d 484, 492). In any event, viewing the
evidence in the light most favorable to the prosecution (see
People v Contes, 60 N.Y.2d 620, 621), we find that
it was legally sufficient to establish the defendant's
guilt beyond a reasonable doubt. Moreover, in fulfilling our
responsibility to conduct an independent review of the weight
of the evidence (see CPL 470.15; People v
Danielson, 9 N.Y.3d 342), we nevertheless accord great
deference to the jury's opportunity to view the
witnesses, hear the testimony, and observe demeanor (see
People v Mateo, 2 N.Y.3d 383, 410; People v
Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record
here, we are satisfied that the verdict of guilt was not
against the weight of the evidence (see People v
Romero, 7 N.Y.3d 633).
defendant's contention that certain remarks made by the
prosecutor during summation were improper and deprived him of
a fair trial is unpreserved for appellate review (see CPL
470.05; People v Moses, 112 A.D.3d 447, 448;
People v Nunez, 82 A.D.3d 1128, 1129). In any event,
the defendant's contention is without merit, as the
challenged remarks were responsive to arguments raised by the
defendant's counsel during summation and constituted fair
comment on the evidence (see People v Boyce, 54
A.D.3d 1052, 1053; People v Salnave, 41 A.D.3d 872,
874; People v Tucker, 27 A.D.3d 592).
sentence imposed was not excessive (see People v
Suitte, 90 A.D.2d 80).
defendant's remaining contention is unpreserved for
appellate review (see CPL 470.05), ...