Submitted - June 3, 2019
Diamond, New York, NY, for appellant.
Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove,
Ann Bordley, and Andrew S. Durham of counsel), for
D. SCHEINKMAN, P.J. SYLVIA O. HINDS-RADIX HECTOR D. LASALLE
BETSY BARROS, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Deborah Dowling, J.), rendered January 12, 2015,
convicting him of course of sexual conduct against a child in
the first degree, upon a jury verdict, and imposing sentence.
that the judgment is affirmed.
defendant's challenge to the legal sufficiency of the
evidence 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), 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 contends that he was denied his constitutional
rights to present a complete defense and confront witnesses
because the Supreme Court did not allow him to fully
cross-examine the complainant's mother about alleged
incidents of sexual violence between the mother and her
paramour. However, since the defendant did not assert a
constitutional right to introduce the excluded evidence at
trial, his constitutional claims are unpreserved for
appellate review (see People v Simmons, 106 A.D.3d
1115, 1116). In any event, the Supreme Court providently
exercised its discretion in curtailing the admission of
evidence regarding such incidents, which allegedly took place
within a non-relevant period of time (see People v
Clarkson, 78 A.D.3d 1573, 1573-1574). Moreover, the
defendant was afforded a full and fair opportunity through
cross-examination to elicit evidence about the presence of
the mother's paramour in the complainant's life
(see Matter of Demetri B., 54 A.D.3d 331, 332).
defendant's contention that certain remarks made by the
prosecutor during summation deprived him of a fair trial is
unpreserved for appellate review, as defense counsel either
did not object to the challenged remarks or made only general
objections (see CPL 470.05; People v
Tonge, 93 N.Y.2d 838, 839-840; People v
Salnave, 41 A.D.3d 872, 874). In any event, the
contention is without merit. The prosecutor's remarks
were responsive to the defense summation, constituted fair
comment on the evidence, or were within the broad bounds of
rhetorical comment permissible in closing arguments (see
People v Thompson, 118 A.D.3d 822, 823, revd on
other grounds 26 N.Y.3d 678; People v Jackson,
41 A.D.3d 498, 499). Furthermore, since the challenged
summation remarks were not improper, defense counsel's
failure to object to them did not constitute ineffective
assistance of counsel (see People v Fletcher, 130
A.D.3d 1063, 1065-1066, affd 27 N.Y.3d 1177).
defendant's contention that a certain jury instruction
given by the Supreme Court deprived him of a fair trial is
unpreserved for appellate review, as no such objection was
made at trial (see CPL 470.05; People v
Jones, 290 A.D.2d 514, 515). In any event, the
contention is without merit, since, "in the context of
the jury instructions in their entirety, there is no basis
for concluding that the proper burden of proof upon the
People was undermined or less than adequately conveyed"
(People v Slacks, 90 N.Y.2d 850, 851).
the admission of testimony of the People's expert
concerning the behavior of child sexual abuse victims was a
provident exercise of discretion. The expert spoke in general
terms, noting that she had never met or treated the
complainant, and "the testimony assisted in explaining
the behavior of the [complainant] following the alleged abuse
that the jury might not otherwise understand"
(People v Taylor, 165 A.D.3d 707, 709).
defendant's remaining contentions are without merit.
SCHEINKMAN, PJ, HINDS-RADIX, LASALLE ...