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 4½ 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), ...