Opinion
2014–02087 Ind. No. 7978/12
04-03-2019
The PEOPLE, etc., Respondent, v. Marlon HERNANDEZ, Appellant.
Paul Skip Laisure, New York, N.Y. (Lauren E. Jones of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Jordan Cerruti of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Lauren E. Jones of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Jordan Cerruti of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), rendered February 25, 2014, convicting him of rape in the first degree (three counts), upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed.
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 (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). 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 at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, 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 ).
The defendant's contention that certain of the prosecutor's summation remarks deprived him of a fair trial because they were inflammatory, improperly vouched for the complainant's credibility, improperly appealed to the jury's sympathy, or denigrated the defense is unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Martin, 116 A.D.3d 981, 982, 983 N.Y.S.2d 813 ; People v. Arena, 70 A.D.3d 1044, 1047, 895 N.Y.S.2d 514 ). In any event, most of the challenged portions of the prosecutor's summation were fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to defense counsel's summation, or within the bounds of permissible rhetorical comment (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Martin, 116 A.D.3d at 982, 983 N.Y.S.2d 813 ). To the extent that some of the challenged remarks were improper, they were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Wilson, 163 A.D.3d 881, 81 N.Y.S.3d 163 ; People v. Ferdinand, 161 A.D.3d 767, 768, 72 N.Y.S.3d 839 ). Contrary to the defendant's contention, his counsel's failure to object to the improper comments did not deprive the defendant of the effective assistance of counsel (see People v. Wragg, 26 N.Y.3d 403, 411, 23 N.Y.S.3d 600, 44 N.E.3d 898 ). Viewed in their totality, the circumstances reveal that defense counsel provided meaningful representation (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Clark, 28 N.Y.3d 556, 562–563, 46 N.Y.S.3d 817, 69 N.E.3d 604 ).
Contrary to the defendant's contention, the second and third counts of rape in the first degree are not multiplicitous. The complainant testified as to three separate penetrations of her vagina by the defendant's penis, and the separate penetrations did not constitute a single, uninterrupted occurrence (see People v. Garcia, 141 A.D.3d 861, 865, 34 N.Y.S.3d 766 ; People v. Grosso, 281 A.D.2d 986, 988, 722 N.Y.S.2d 846 ; People v. Jiminez, 239 A.D.2d 360, 360, 657 N.Y.S.2d 735 ; cf. People v. Alonzo, 16 N.Y.3d 267, 270, 920 N.Y.S.2d 302, 945 N.E.2d 495 ).
DILLON, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.