- September 5, 2019
Patrick Michael Megaro, Forest Hills, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Judith R.
Sternberg and Barbara Kornblau of counsel), for respondent.
REINALDO E. RIVERA, J.P. JEFFREY A. COHEN ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Nassau
County (Patricia A. Harrington, J.), rendered June 28, 2018,
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.
to the defendant's contention, the prosecution
established by a preponderance of the evidence that venue was
proper in Nassau County (see CPL 20.40;
People v. Ribowsky, 77 N.Y.2d 284, 291-292;
People v. Lee, 165 A.D.3d 838, 839; People v.
Guzman, 153 A.D.3d 1273, 1274).
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, 348),
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, based upon post-verdict examinations of
the trial transcript, that the interpreter used during the
trial made errors in translation such that he was denied a
fair trial. To the extent that this argument is based on
matter that is dehors the record, it is not reviewable on
direct appeal (see People v. Manzanales, 170 A.D.3d
752, 753; People v. Bethea, 159 A.D.3d 710, 713;
People v. Krivoi, 81 A.D.3d 978). To the extent that
this argument is based on matter that does appear in the
record, it is without merit (see People v. Mosquero,
128 A.D.3d 985, 986; cf. People v. Maxwell, 89
A.D.3d 1108, 1109).
defendant's contention that he was improperly excluded
from a sidebar conference is unpreserved for appellate
review, as he raised no objection at trial (see People v.
Glover, 96 A.D.3d 777, 778). In any event, the
contention is without merit, since the defendant knowingly,
voluntarily, and intelligently waived his right to be present
at legal sidebar conferences (see People v.
Antommarchi, 80 N.Y.2d 247; People v. Reyes,
169 A.D.3d 721, 721; People v. Maldonado, 167 A.D.3d
1046, 1047). Moreover, the sidebar conferences at issue
involved purely legal matters and, thus, did not constitute a
material stage of the proceeding (see People v.
Collins, 99 N.Y.2d 14, 19; People v. Breland,
220 A.D.2d 678, 679).
agree with the Supreme Court's determination to deny the
defendant's Batson challenge (see Batson v.
Kentucky, 476 U.S. 79), as the defendant failed to make
a prima facie showing of purposeful discrimination in the
People's exercise of peremptory challenges. The defendant
merely contended that the prosecution peremptorily challenged
three out of six jurors with Spanish-sounding last names. The
defendant failed to offer any showing of facts and
circumstances sufficient to raise an inference of purposeful
discrimination (see People v. Hecker, 15 N.Y.3d 625,
653-655; People v. Childress, 81 N.Y.2d 263,
267-268; People v. Bolling, 79 N.Y.2d 317, 325;
People v. Mancha, 162 A.D.3d 903, 903; People v.
Santos, 105 A.D.3d 1064, 1065; People v.
Redish, 262 A.D.2d 664, 665).
defendant contends that he was deprived of a fair trial by
the prosecutor's misconduct during summation. The claimed
instances of misconduct are either unpreserved for appellate
review, constituted fair comment on the evidence, were fair
responses to arguments and theories presented in the defense
summation, were within the permissible bounds of rhetorical
comments, or were not, either individually or collectively,
so egregious as to deprive the defendant of a fair trial
(see People v. Mairena, 160 A.D.3d 986, 988;
People v. Baez, 137 A.D.3d 805; People v.
Pringle, 136 A.D.3d 1061, 1063; People v.
Scurry, 123 A.D.3d 949; People v. Cherry, 127
A.D.3d 879, 880).
defendant's contention that the sentence imposed by the
Supreme Court improperly penalized him for exercising his
right to a jury trial is unpreserved for appellate review,
because he did not set forth the issue on the record at the
time of sentencing" (People v. Musheyev, 162
A.D.3d 794, 795; see People v. Hodge, 154 A.D.3d
963, 965; People v. Cruz, 137 A.D.3d 1158, 1160). In
any event, this contention is without merit. "The fact
that the defendant received a harsher sentence after trial
than he was offered during plea negotiations does not
indicate that he was punished for exercising his right to a
trial" (People v. Croom, 171 A.D.3d 781, 784).
"There is no indication in the record that the sentence[
] [was] the result of vindictiveness or retribution for the