Opinion
8828 8829 Ind. 473/10
03-28-2019
The PEOPLE of the State of New York, Respondent, v. Juan CACERES, Defendant–Appellant.
Christina A. Swarns, Office of the Appellate Defender, New York (David Billingsley of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.
Christina A. Swarns, Office of the Appellate Defender, New York (David Billingsley of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.
Renwick, J.P., Richter, Kapnick, Kahn, Oing, JJ.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered March 1, 2011, as amended April 13, 2011, convicting defendant, after a jury trial, of rape in the second degree, endangering the welfare of a child and criminal contempt in the second degree, and sentencing him to an aggregate term of seven years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson , 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's determinations concerning credibility and the evaluation of expert testimony. The victim's testimony was extensively corroborated by other evidence.
After the victim testified about an uncharged incident of sexual abuse, the court providently exercised its discretion when it denied defendant's belated motion for the unduly drastic remedy of a mistrial, and instead offered to strike the testimony and deliver a curative instruction. Although the prosecutor should have sought an advance ruling (see People v. Ventimiglia , 52 N.Y.2d 350, 361–62, 438 N.Y.S.2d 261, 420 N.E.2d 59 [1981] ), the evidence was admissible as background information to place the events in context and explain the victim's delay in reporting the charged criminal conduct (see e.g. People v. Nicholson , 26 N.Y.3d 813, 829, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ), and the lack of a Ventimiglia hearing did not cause defendant any prejudice (see People v. McLeod , 279 A.D.2d 372, 719 N.Y.S.2d 557 [1st Dept. 2001], lv denied 96 N.Y.3d 921, 732 N.Y.S.2d 638, 758 N.E.2d 664 [2001] ). In any event, striking the testimony would have been more than sufficient (see People v. Vaz , 118 A.D.3d 587, 988 N.Y.S.2d 179 [1st Dept. 2014], lv denied 24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014] ), but defense counsel declined that remedy because he did not want to be precluded from cross-examining the victim on her recantation of the uncharged allegation.
Defendant's challenges to the People's summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee , 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ; People v. D'Alessandro , 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).