Opinion
2014–04592 Ind. No. 13–00191
12-11-2019
The PEOPLE, etc., Respondent, v. Vikas JAGOTA, Appellant.
Gary E. Eisenberg, New City, NY, for appellant. Kevin P. Gilleece, Acting District Attorney, New City, N.Y. (Carrie A. Ciganek of counsel), for respondent.
Gary E. Eisenberg, New City, NY, for appellant.
Kevin P. Gilleece, Acting District Attorney, New City, N.Y. (Carrie A. Ciganek of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Rockland County (William K. Nelson, J.), rendered April 24, 2014, convicting him of assault in the second degree, abortion in the second degree, endangering the welfare of a child, criminal mischief in the fourth degree, and assault in the third degree (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The evidence at trial established, inter alia, that the defendant committed multiple acts of violence against the complainant, sometimes in the presence of a child. The evidence established that on one occasion, after the defendant learned that the complainant was pregnant, he punched her in the stomach and caused her to have a miscarriage. At the conclusion of the jury trial, the defendant was convicted of assault in the second degree, abortion in the second degree, endangering the welfare of a child, criminal mischief in the fourth degree, and assault in the third degree (three counts).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review, as defense counsel made only a general motion for a trial order of dismissal, arguing that the People failed to make out a prima facie case (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Upon our independent review of the record (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to the defendant's contention, the County Court providently exercised its discretion in denying his challenge for cause to a prospective juror. The statements made by the prospective juror did not indicate that he had "a state of mind that [was] likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial" ( CPL 270.20[1][b] ; see People v. Gross, 172 A.D.3d 741, 743, 99 N.Y.S.3d 367 ; see also People v. Arnold, 96 N.Y.2d 358, 363, 729 N.Y.S.2d 51, 753 N.E.2d 846 ).
We agree with the County Court's determination to allow the People to present evidence of prior uncharged incidents in which the defendant allegedly struck the complainant. In domestic violence cases such as this one, "evidence of prior assaults is admissible ‘because the aggression and bad acts are focused on one particular person, demonstrating the defendant's intent, motive, identity and absence of mistake or accident’ and provides the necessary background as to the relationship between the defendant and the victim" ( People v. Graham, 159 A.D.3d 1022, 1023, 73 N.Y.S.3d 587, quoting People v. Womack, 143 A.D.3d 1171, 1173, 41 N.Y.S.3d 302 ).
The defendant's contention that certain remarks made by the prosecutor in summation deprived him of a fair trial is unpreserved for appellate review, since the defendant did not object to any of the challenged remarks (see CPL 470.05[2] ). In any event, the contention is without merit, as the remarks were fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to the defense summation, or permissible rhetorical comment, or do not otherwise require reversal (see People v. Taylor, 159 A.D.3d 734, 735, 71 N.Y.S.3d 580 ; People v. Kaval, 154 A.D.3d 875, 876, 63 N.Y.S.3d 411 ).
The defendant's contention that he was deprived of the effective assistance of counsel is without merit. Viewed in totality, the record reflects that the defendant received the effective assistance of counsel under the federal and state constitutional standards (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.
DILLON, J.P., COHEN, MILLER and CONNOLLY, JJ., concur.