Opinion
2012-02-14
The PEOPLE, etc., respondent, v. Joseph SWEENEY, appellant.
Spiros A. Tsimbinos, Kew Gardens, N.Y. (Joseph F. DeFelice of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Merri Turk Lasky of counsel), for respondent.
Spiros A. Tsimbinos, Kew Gardens, N.Y. (Joseph F. DeFelice of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), dated June 30, 2011, convicting him of rape in the first degree, criminal sexual act in the first degree, endangering the welfare of a child, and unlawfully dealing with a child in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that there was legally insufficient evidence to support his convictions of rape in the first degree and criminal sexual act in the first degree, as the People failed to establish that the complainant was “physically helpless,” an element of those crimes as charged here ( see Penal Law §§ 130.35[2], 130.50[2] ). Viewing the evidence in the light most favorable to the prosecution ( 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 that the complainant was “physically helpless” at the time of this incident, based on, inter alia, the evidence of the complainant's inability to communicate resulting from severe intoxication ( see Penal Law § 130.00[7]; People v. Himmel, 252 A.D.2d 273, 275–276, 686 N.Y.S.2d 504; People v. Ferrer, 250 A.D.2d 860, 861, 672 N.Y.S.2d 795; People v. Cole, 212 A.D.2d 822, 823, 622 N.Y.S.2d 354; People v. Cirina, 143 A.D.2d 763, 533 N.Y.S.2d 305).
The defendant failed to preserve for appellate review his contention that there was legally insufficient proof of the intent element of the rape in the first degree and criminal sexual act in the first degree charges in light of proof of his intoxication ( 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, the contention is without merit ( see People v. Park, 12 A.D.3d 942, 943, 785 N.Y.S.2d 180; People v. Maxwell, 260 A.D.2d 653, 653–654, 688 N.Y.S.2d 262; People v. Brown, 226 A.D.2d 1108, 1108–1109, 642 N.Y.S.2d 145).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1; People v. Romero, 7 N.Y.3d 633, 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902), 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record, 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, 826 N.Y.S.2d 163, 859 N.E.2d 902; see also People v. Gilbo, 52 A.D.3d 952, 954, 859 N.Y.S.2d 521).
The Supreme Court erred in admitting, under the “prompt outcry” exception to the hearsay rule, certain testimony regarding a complaint made by the victim ( People v. Rosario, 17 N.Y.3d 501, 513, 934 N.Y.S.2d 59, 958 N.E.2d 93; see People v. Allen, 13 A.D.3d 892, 894–895, 787 N.Y.S.2d 417; see also People v. Workman, 56 A.D.3d 1155, 1157, 868 N.Y.S.2d 430). However, that error was harmless, as the evidence of guilt was overwhelming, and there is no significant probability that the error contributed to the verdict of guilt under these circumstances ( see People v. Rice, 75 N.Y.2d 929, 932, 555 N.Y.S.2d 677, 554 N.E.2d 1265; People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
Viewing the record as a whole, we find that there is no merit to the defendant's claim that he was denied the effective assistance of counsel ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883; People v. McCall, 75 A.D.3d 999, 1002, 906 N.Y.S.2d 394; see also People v. Colville, 79 A.D.3d 189, 909 N.Y.S.2d 463, lv. granted 17 N.Y.3d 793, 929 N.Y.S.2d 101, 952 N.E.2d 1096).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).