Opinion
2021-03998 2017-03382
06-22-2021
The People of the State of New York, Respondent, v. Luis Guzman, Defendant-Appellant. Ind Nos. 5332/16, 5332/16 Appeal No. 14106
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Rutkin-Becker of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Julia Gorski of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Rutkin-Becker of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Julia Gorski of counsel), for respondent.
Before: Renwick, J.P., Kennedy, Scarpulla, Mendez, JJ.
Judgment, Supreme Court, New York County (Michael Sonberg, J.), rendered November 1, 2017, convicting defendant, after a jury trial, of forcible touching, and sentencing him to six years' probation, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. The fact that defendant was acquitted of another charge does not warrant a different conclusion (see People v Rayam, 94 N.Y.2d 557 [2000]).
Defendant did not preserve his challenge to statements, admitted as excited utterances, that the victim made to two coworkers within half an hour of being forcibly touched by defendant, and we decline to review it in the interest of justice. Defendant's objection can only be understood as contingent on the sufficiency of the foundation to be laid for this evidence, and after the foundation was laid, defendant abandoned the issue (see People v Graves, 85 N.Y.2d 1024, 1027 [1995]). As an alternative holding, we find that the court providently exercised its discretion in receiving this evidence (see People v Hernandez, 28 N.Y.3d 1056, 1057 [2016]). The mere fact that the victim at first declined to tell the coworkers what had happened does not establish that the victim, who was in emotional turmoil and was crying and shaking, was no longer under the influence of the stressful event.
We perceive no basis for reducing defendant's sentence. We have considered and rejected defendant's remaining claim regarding his sentencing.