Opinion
2017–06056 Ind. No. 16-01074
10-16-2019
The PEOPLE, etc., Respondent, v. Juan Sumba DUCHI, Appellant.
Adam Seiden, Mount Vernon, NY, for Appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio and Virginia A. Marciano of counsel), for Respondent.
Adam Seiden, Mount Vernon, NY, for Appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (William C. Milaccio and Virginia A. Marciano of counsel), for Respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
The defendant's challenges to the legal sufficiency of the evidence supporting his convictions of attempted rape in the first degree (see Penal Law § 130.35[1] ) and assault in the second degree (see Penal Law § 120.05[2] ) are unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of attempted rape in the first degree and assault in the second degree beyond a reasonable doubt. Moreover, upon our independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that the Supreme Court improvidently exercised its discretion in admitting evidence that the defendant drugged the complainant's alcoholic drink on the night of the offense is unpreserved for appellate review, because he did not challenge the admission of this evidence at trial (see CPL 470.05[2] ). In any event, contrary to the defendant's contention, the challenged evidence did not constitute Molineux evidence (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286 ), since it was not a prior bad act or prior uncharged crime, but rather, was "relevant to the very same crime for which the defendant [was] on trial" ( People v. Frumusa, 29 N.Y.3d 364, 370, 57 N.Y.S.3d 103, 79 N.E.3d 495 ).
During opening statements, the prosecutor, in describing what she expected the evidence to show, indicated that the defendant, rather than the complainant, ordered the alcoholic drink for the complainant. However, at trial, the complainant testified that "they" ordered the drink. The defendant's contention that the prosecutor's comment during opening statements deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2] ). In any event, "absent bad faith or undue prejudice," unfulfilled promises in a prosecutor's opening statement generally will not entitle a defendant to a new trial ( People v. De Tore , 34 N.Y.2d 199, 207, 356 N.Y.S.2d 598, 313 N.E.2d 61 ; see People v. Carmichael , 170 A.D.3d 742, 742–743, 95 N.Y.S.3d 271 ). Here, there is no reason to believe that the prosecutor acted in bad faith and the defendant was not unduly prejudiced by the unfulfilled representation (see People v. Carmichael, 170 A.D.3d at 743, 95 N.Y.S.3d 271 ; People v. McKnight , 72 A.D.3d 846, 846–847, 898 N.Y.S.2d 462, affd . 16 N.Y.3d 43, 917 N.Y.S.2d 594, 942 N.E.2d 1019 ).
The defendant's remaining contentions are without merit.
MASTRO, J.P., BALKIN, BARROS and CHRISTOPHER, JJ., concur.